REPORTS 


CASES  ARGUED  AND  DETERMINED 


—IN  TH1 


SUPREME  COURT  OF  JUDICATURE 


— OP   THE— 


STATE  OF  NEW  JERSEY. 


SAMUEL    L.    SOUTHARD,    REPORTER. 


VOLUME  H.— THIRD  EDITION. 


JOHiT    H. 

Counsel  or- «t- Law. 


TRENTON,  N.  J.: 
THE  W.  S.  SHARP  PRIXTIMO  Co. 

1886. 


V&A5 


NOTE. 

In  cases  cited  from  Southard's  Reports,  the  "  star "  pages  are 
referred  to. 


778583 


TABLE   OF   CASES. 


Abrams,  Flatt  v.. 544 

Angus  v.  Radio 815 

Applegate,  diver  v 479 

Arnold,  Den  v 862 

Ashcroft  v.  Clark 577 

Ayres  &  Vandorn  v.  Vanlieu 765 

Ayers  &  Thompson  v.  Swayze 812 

B. 

Banks  et  al.  v.  Murray  et  al 849 

Barnet,  Miller  v 547 

Baylor,  Shepherd  v 827 

Beardslee,  Buckley  v 570 

Blanchard,  Sayre  v 551 

Brearley,  State  v 555 

Brookfield,  Sayre  v 564 

Brookfield,  Sayre  v 737 

Brookfield,  Winans  v 847 

Brnere,  Montgomery  v 865 

Buckley  v.  Beardslee 570 

Buchanan  v.  Rowland 721 

Budd  &  Jones,  Hunter  v 718 

Burrough  v.  Thome 777 

Burrough  v.  Vanderveer 809 

O. 

Carhart  v.  Miller 573 

Carhart,  Miller  v  720 

Chamberlain  v.  Letson 452 

Cheeseman,  State  v 445 

Christie,  Harker  v 717 

Clark  v.  Ashcroft 677 

Clark  v.Read 486 

Clawson  v.  Gustin...! 821 

Cliver  v.  Applegate 479 

Collins,  Lacey  &  Earle  v 489 

Colfax,  Corse  v 684 

Colwell,  Miller  v 577 

Conine  v.  Scoby 510 

Cook,  Thompson  V- 580 


Corse  v.  Colfax 684 

Coryell  v.  Croxall 764 

Cory  v.  Lewis 846 

Crane,  Mead  v 852 

Craig,  Hendricks  v 567 

Craig  v.  Berry 852 

Cramer,  Tunison  v 498 

Croxall,  Coryell  v... 764 

Cumberland  Bank  v.  Hall  718 

Curtis  v.  Hulsizer.  496 

D. 

Dean  v.  Wade 719 

Decker  v.  Hardin 579 

Decker,  Hamilton  &  Edsall  v 813 

Demund  v.  Gowen 687 

Demund  v.  French 828 

Den  v.  Taylor  &  Sheppard 413 

Deu  v.  Hugg 427 

Den  v.  Johnson 454 

Den  v.Moore 470 

Den  v.  Kinney 555 

Den  v.  Vancleve 589 

Den  v.  Vancleve 719 

Den  v.Wilson 680 

Den  v.  Robinson  et  al 689 

Den  v.  Franklin  &  Sharp 851 

Den  v.Arnold 862 

Doolittle,  Miller  v 845 

Douglass,  Norris  v 817 

E. 

Estell  v.  Vanderveer 782 

Everitt,  Vandoren  v 460 

F. 

Ferguson,  Matthews  v 822 

Flatt  v.  Abrams... ~)44 

Folly,  Ward  v 482 

Folly,  Ward  v.... 485 

Franklin  &  Sharp,  Den  v 851 

French,  Demund  v 828 


vi 


TABLE  OF  CASES. 


[5  LAW 


a. 

Gibbons,  Ogden  v 518 

Gibbons,  Ogden  v 853 

Gowen,  Demund  v 687 

Gustin,  State  v 744 

Gustin,  State  v 749 

Gustin,  Clawson  v 821 


Harris  v.  White  &  Mayhew 422 

Hallet,  Olden  v 466 

Hamilton,  Vanhorne  v 477 

Hayden,  Hillman  v 575 

Hardin,  Decker  v 579 

Harker  v.  Christie 717 

Hall,  Cumberland  Bank  v 718 

Halsey,  Jersey  Company  v 750 

Hamilton  &  Edsall  v.  Decker 813 

Hendricks  v.  Craig 567 

Hendricks,  Mount  and  Crane  v...  738 

Hibler,  Swisher  v 808 

Hillman  v.  Hayden 575 

Howell,  Oliver  et  al.  v 581 

Hopper,  Vandien  v 764 

Hoff  v.  Taylor 829 

Hugg,  Den  v 427 

Hnntv.  South 495 

Hulsizer,  Curtis  v 496 

Hunter  v  Budd  and  Jones 718 

Hughes  v.  Ogden 718 

Huffman,  Miller  v 719 

Hunt  v.  Young 813 

J. 

Jersey  Company  v.  Halsey 750 

Johnson,  Den  v 454 

Johnson,  Smith  v 511 

Jones,  Lawrence  v 825 

Judson  v.  Storer 544 

Judges  Orphans  Court,  State  v....  554 

K. 

Kerry.  Phillips 818 

Kinney,  Den  v 552 

Kirby,  State  v 835 


L. 

Lawrence  v.  Patent  Cloth  Manu- 
facturing Co 433 

Lamb,  Newbold  v 449 

Lacey  &  Earle  v.  Collins 489 

Larzaleer,  Oliver  v 513 

Lanning  v.  Shute 573 

Lanning  v.  Shute 778 

Latourette  and   Gartzman,   Lin- 

bergerv 809 

Lawrence  v.  Jones 825 

Lawrence  et  al.,  State  v 850 

Lawrence  v.  Squier 861 

Letson,  Chamberlain  v 452 

Lewis  v.  Little 685 

Lewis,  Cory  v 846 

Little,  Lewis  v 685 

Linn,  Strong  &  Havens  v 799 

Linberger    v.    Latourette    and 

Gartzman 809 

Lum,  Wierv 823 

Lum,  Searing  v 683 

M. 

Marsh  v.  Pat.  Cloth  Man.  Co 433 

Marsh  v.  Squier 861 

Marsh,  Vantyl  v 507 

Mairs  v.  Sparks 513 

Manning  v.  Shotwell  et  al 584 

Matthews  v.  Ferguson 822 

Mead  v.  Crane 852 

Meeker  v.  Potter 586 

Mendham  v.  Morris 810 

Miller  v.Stoy.. 476 

M'Dole,  Wills  v 501 

M'Eowen  v.  Rose 582 

M'Kown,  Shotwell  v 828 

Miller  v.  Miller 50* 

Miller  v.  Barnet 547 

Mills  v.  Sleght 565 

Miller,  Carhart  v 57$ 

Miller,  Carhart  v 720 

Miller  v.  Colwell 577 

Miller  v.  Huffman 719 

Miller  v.  Tuttle 810 

Miller  v.  Doolittle 845 

Montgomery  v.  Bruere 865 


2  SOUTH.] 


TABLE  OF  CASES. 


Vll 


Morris,  Mendham  v 810 

Mount  &  Crane  v.  Heiulricks. 738 

Montfort  v.  Vanarsdalen 686 

Moore,  Den  v... 470 

Murray  et  al.,  Banks  et  al.  v 849 

N. 

Nafie,  Vanness  v 683 

New-bold  v.  Lamb 449 

Nichols,  State  v 539 

Nixon  v.  Vanhise 491 

Northampton  v.  Woodward  et  al.,  788 

Norris  v.  Douglass 817 

O. 

Ogden  v.  Gibbons 518 

Ogden,  Gibbons  v 853 

Ogden,  Hughes  v 718 

Oliver  &  Tilman  v.  Howell 581 

Oliver  v.  Larzaleer 513 

Olden  v.  Hallett 466 

Overseers  of  Weatfield,  Roll  v 493 

P. 
Pat.  Cloth    Manufacturing    Co., 

Stansbury  v 433 

Pat.    Cloth    Manufacturing  Co., 

Lawrence  v 433 

Pat.    Cloth    Manufacturing   Co., 

Marsh  v 433 

Parker,  Rose  v 780 

Petty,  Sutton  v 504 

Phillips,  Kerr  v 818 

Potts  et  al.,  State  v 862 

Potts,  Sterling  v 773 

Polter,  Meeker  v 586 

Price  v.  Summers 578 

B. 

Raborg,  State  v... 545 

Radin,  Angus  v '. 815 

Read,  Clark  v 486 

Roll  v.  Overseers  of  Westfield.....  493 

Rose,  M'Eowen  v 582 

Robinson,  Den  v 689 

Ross,  Thorp  v 720 

Rowland,  Buchanan  v 721 


Rose  v.  Parker 780 

Rose  &  Leonard,  Wame  v 809 


Sayre  v.  Blanchard 551 

Sayre  v.  Brookfield 564 

Sayre  v.  Brookfield 737 

Scudder,  Wade  v 681 

Scoby,  Conine  v 510 

Scudder,  Stevens  v 503 

Searing  v.  Lum.« 683 

Sharp  ATuttlev.  Young  &  Young,  845 

Shute,  Lanning  v 553 

Shute,  Lanning  v 778 

Shinn,  State  v.. 553 

Shotwell,  Manning  v 584 

Shotwell  v.  M'Eowen 828 

Shepherd  v.  Baylor 827 

Sinnickson,  Sterling  v 756 

Sleght,  Mills  v 565 

Smith  v.Johnson 511 

Smalley  &  Cornell  v.  Vanorden-  811 

Sneed  v.  Wallen 682 

South,  Hunt  v 495 

Sparks,  Mairs  v 513 

Squier,  Lawrence  v 861 

Squier,  Stansbury  v 861 

Squier,  Marsh  v- 861 

Stansbury  v.  Pat.  Cloth  Man.  Co.,  433 

Stansbury  v.  Squier 861 

State  v.  Cheeseman 445 

State  v.Nichols 539 

State  v.  Raborg 545 

State  v.  Shinn.. 553 

State  v.  Judges  of  Burlington 554 

State  v.  Brearley 555 

State  v.  Gustin 744 

State  v.  Gustin 749 

State  v.  Lawrence  et  al.. 850 

State  v.  Kirby 835 

State  v.  Potts  et  al 862 

Stevens  v.  Scudder 503 

Sterling  v.  Sinnickson 756 

Sterling  v.  Potts 773 

Stoy,  Miller  v.. 476 

Storer,  Judson  v 544 

Strong  &  Havens  v.  Linn..  799 


Vlll 


TABLE  OF  CASES. 


[5  LAW 


Sutton  v.  Petty 504 

Summers,  Price  v 578 

Swisher,  Wintermute  v 682 

Swisher  v.  Hibler 808 

Swayze,  Ayers  &  Thompson  v 812 

T. 

Taylor  &  Shepherd,  Den  v 413 

Taylor,  Hoff  v 829 

Thompson  v.  Cook 580 

Thorp  v.Ross 720 

Tliorne,  Burrough  v 777 

Tunison  v.  Cramer 498 

Tuttle,  Miller  v.- 810 

V. 

Vandoren  v.  Everitt 460 

Vanhorn  v.  Hamilton 477 

Vanauken,  Westbrook  v 478 

Vanhise,  Nixon  v 491 

Vantyl  v.  Marsh 507 

Vanauken  v.  Wickham 509 

Vancleve,  Den  v 589 

Vancleve,  Den  v 719 

Vanness  v.  Nafie 683 

Vanarsdalen,  Montfort  v 686 

Vandien  v.  Hopper 764 

Vanlieu,  Ayres  &  Vandorn  v 765 

Vanderveer,  Estell  v 782 


Vanderveer,  Burrough  v 809 

Vanpelt,  Whitlock  v 810 

Vanorden,  Smalley  &  Corriell  v...  811 

Vangiesen  v.  Vanhouten 822 

Vanhouten,  Vangiesen  v 822 

W. 

Ward  v.  Folly 482 

Ward  v.  Folly 485 

Wade  v.  Scudder 681 

Wallen,  Sneed  v 682 

Wade,  Dean  v- 719 

Warne  v.  Rose  &  Leonard 809 

Westbrook  v.  Vanauken 478 

White  &  Mayhew,  Harris  v 422 

Whitlock  v.  Vanpelt 810 

Wills  v.M'Dole 501 

Wickham,  Vanauken  v 509 

Wilson,  Denv 680 

Wintermute  v.  Swisher 682 

Willson  v.  Willson 791 

Wier  v.  Lum 823 

Winans  v.  Brookfield 847 

Woodward  et  al.,  Northampton  v.,  788 

Y. 

Young,  Hunt  v 813 

Young  &  Young,  Sharp  &  Tut- 
tle v.  .  ..  845 


"CASES  DETERMINED 


IN  THE 


SUPREME  COURT  OF  JUDICATURE 


OP  THE 


STATE    OF    NEW   JERSEY, 

FEBRUARY  TERM,  1819. 


DEN,  on  the  demise  of  HARRIS  and  wife,  v.  WILLIAM  TAYLOR 
and  DAVID  SHEPPARD. 

A  devise,  "  I  give  to  S.  S.,  his  heirs  and  assigns  forever,  but  in  case  lie 
should  die  before  he  arrives  to  lawful  age  or  have  lawful  issue,  then  over  " 
Ac.,  creates  estate  in  fee  with  executory  devise  &c.  (a) 


In  ejectment. 

This  cause  came  up  on  a  special  verdict,  formed  at  the  Cum- 
berland circuit  in  June,  1816,  which  was  subsequently  amended 
by  agreement  of  parties  in  May,  1817,  and  presents  the  follow- 
ing facts :  Stephen  Sheppard  was  seized  of  the  premises  in  ques- 

(a)  Cited  in  Den  v.  Snitcher,  2  Or.  59  ;  Dm,  Brown  v.  Mugway,  S  Or.  SSO  ; 
Den,  Abrahams  v.  English,  2  Harr.  289  ;  Morehouse  v.  Cotheal,  S  Zab.  440  ,- 
Moore  v.  Bake,  S  Dutch.  585  ;  Kent  v.  Armstrong,  S  Hal.  Ch.  643;  see,  also, 
Den,  Van  Middlesworth  v.  Schenek,  S  Hal.  £9  ;  Pennington  v.  Van  Houten,  4  Hal. 
Ok.  *72,  affirmed  on  appeal,  4  Hal.  Ch.  745;  Jones  v.  Stites,4  C.  E.  Or.  3*4  f 

Wurts  v.  Page,  4  C.  E.  Or.  365;  Den,  Trumbull  v.  Gibbons,  S  Zab.  117;  Wal- 
lington  v.  Taylor,  Sax  314;  Kennedy  v.  Kennedy,  5  Dutch.  185 ;  Den  v.  Huyy, 
post  431 ;  Condiet  v.  King,  2  Beat.  375;  Den  v.  Allaire,  Spen.  6;  Seddel  v. 

Wills,  Span.  £23;   Vredand  v.  Jilauvelt,  8  C.  E.  Or.  483. 

485  *413 


486  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Den  v.  Taylor. 

tion,  and  on  the  22d  of  September,  A.  D.  1783,  made  his  will  in 
due  form  of  law,  and  among  other  things  devised  the  premises 
as  follows :  "  Item.  I  give  unto  my  brother,  Gibbon  Sheppard, 
the  use  of  all  my  lands,  buildings  and  improvements,  meadows 
and  appurtenances,  during  his  natural  life  and  no  longer,  and 
then  I  give  the  said  lands,  meadows  and  improvements  to  Ste- 
phen Sheppard,  my  nephew,  son  of  my  brother,  Gibbon  Shep- 
pard, aforesaid,  all  which  is  hereby  given  to  my  said  nephew,  his 
heirs  and  assigns,  forever ;  but  in  case  my  said  nephew  should 
die  before  he  arrives  to  lawful  age  or  have  lawful  issue,  then  and 
in  that  case,  I  give  the  same  to  John  Sheppard  and  Hannah 
Sheppard,  son  and  daughter  of  my  brother,  Joseph  Sheppard, 
deceased,  and  to  Louisa  Sheppard,  daughter  of  my  brother, 
*Gibbon  Sheppard,  to  be  equally  divided  among  them,  the  said 
John  Sheppard,  Hannah  Sheppard  and  Louisa  Sheppard,  or  the 
survivors  of  them,  when  they  arrive  to  lawful  age,  then  to 
them,  their  heirs  and  assigns,  forever."  Stephen  Sheppard,  the 
testator,  before  the  28th  day  of  September,  in  the  year  of  our 
Lord  1790,  died  seized  of  the  tenements  aforesaid,  and  the  said 
Gibbon  Sheppard,  in  the  said  will  named,  entered  and  enjoyed 
the  same  during  his  natural  life.  The  said  Gibbon  Sheppard 
died  before  the  7th  day  of  June,  in  the  year  of  our  Lord 
1796 ;  on  the  decease  of  the  said  Gibbon,  Stephen  Sheppard, 
the  devisee,  entered  and  became  seized  thereof,  as  the  law 
directs,  and  continued  seized  and  possessed  thereof  until  he 
arrived  to  the  age  of  twenty-one  years,  to  wit,  on  the  25th  day 
of  June,  1802,  and  still  continued  possessed  thereof  until  the 
28th  day  of  the  same  month  of  June,  at  which  time,  by  deed 
duly  executed,  he  sold  and  conveyed  the  same  land  to  David 
Sheppard,  one  of  the  defendants,  to  have  and  to  hold  to  the  said 
David  Sheppard,  his  heirs  and  assigns,  forever.  On  the  25th 
day  of  June,  1802,  in  the  court  of  common  pleas  of  the  county  of 
Cumberland,  one  Jonathan  Couch  recovered,  by  the  judgment  of 
the  same  court,  against  the  said  Stephen  Sheppard,  the  sum  of  $144 
of  debt  and  $10.70  costs ;  and  on  the  same  day,  in  the  same 
court,  Forman  Sheppard  recovered,  by  the  judgment  of  the  same 
court,  against  the  said  Stephen,  the  sum  of  £72  13s.  lie?,  of 

*414 


2  SOUTH.]          FEBRUARY  TERM,  1819.  487 

Den  v.  Taylor. 

debt  and  $10.70  of  costs ;  upon  which  judgments,  executions 
were  in  due  form  of  law  issued  on  the  same  day,  against  the 
goods  and  chattels,  lands  and  tenements  of  the  said  Stephen 
Sheppard,  and  on  the  same  day  delivered  to  Jeremiah  Bennct, 
Esq.,  the  high  sheriff  of  the  county  of  Cumberland,  by  virtue 
whereof  the  said  sheriff  levied  on  the  lands  in  question,  and 
afterwards,  on  the  27th  day  of  September,  1802,  the  land  was, 
by  the  said  sheriff,  in  due  form  of  law,  exposed  to  sale  at  public 
vendue,  and  the  said  David  Sheppard,  being  the  highest  bidder, 
l)ecame  the  purchaser,  and  the  said  sheriff  executed  and  delivered 
to  the  said  David  Sheppard  a  deed  or  conveyance  therefor,  bear- 
ing date  the  27th  day  of  September  last  aforesaid.  Stephen  Shep- 
pard, the  devisee  aforesaid,  died  on  the  1st  day  of  March,  1804, 
having  attained  the  age  of  twenty-one,  but  with*out  lawful  issue, 
he  never  having  -had  any  issue.  John  Sheppard,  named  in  the 
will  aforesaid,  arrived  to  full  age  and  died  in  the  month  of  April, 
1802,  having  lawful  issue,  to  wit,  John  and  Hannah ;  John  died 
under  age  and  without  issue  and  Hannah  is  now  living ;  that 
Hannah  Sheppard,  named  in  the  said  will,  intermarried  with 
William  Blackman  and  had  lawful  issue  and  died  before  the  year 
1796  ;  the  child  of  the  said  Hannah  died  within  a  few  days  after 
the  death  of  the  said  Hannah ;  John  and  Hannah,  in  the  said 
will  named,  died  before  Stephen  Sheppard,  in  the  said  will 
named;  William  Blackman  is  still  living;  Louisa  Sheppard, 
named  in  the  said  will,  intermarried  with  John  Harris  on  the 
22d  day  of  December,  in  the  year  of  our  Lord  1 798.  The  said 
John  and  Louisa  are  the  lessors  of  the  plaintiff.  The  said  de- 
fendants, William  Taylor  and  David  Sheppard,  were  in  posses- 
sion of  the  premises. 

Stephen  Sheppard,  the  testator,  died  without  issue,  having  a 
brother,  Gibbon  Sheppard,  in  the  said  will  named,  and  a  nephew 
and  niece,  viz.,  John  Sheppard  and  Hannah  Sheppard,  son  and 
daughter  of  his  deceased  brother,  Joseph  Sheppard,  devisees 
named  in  the  will.  The  said  Gibbon  died,  leaving  issue  the 
said  Stephen  and  Louisa,  devisees  in  the  said  will  mentioned, 
and  that  William  Taylor,  one  of  the  defendants,  was  tenant 
under  the  said  David  Sheppard. 

*415 


483  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Den  v.  Taylor. 

R.  Stockton,  for  plaintiff,  maintained  that  Stephen  Sheppard, 
the  devisee,  took,  under  the  will,  an  estate  tail,  with  contingent 
remainder  to  John  Hannah  and  Louisa.  He  cited  4-  Cm.  270, 
271,  272,  274;  ®  Saun.  388  note  8;  1  Ld.  Raym.  207  ;  4.  Oru. 
U4-,  456,  467 ;  1  Ld.  Raym.  505;  2  Vern.  388;  3  Bur.  1634; 
Oro.  Eliz.  525;  4  Cru.  269;  2  Ves.  243  ;  4  Or.  270. 

Ewing,  for  defendant,  argued  that  Stephen  Sheppard  took  an 
estate  in  fee,  defeasible  on  a  condition  subsequent,  which  never 
can  happen,  and  therefore  the  estate  remains.  He  read  4  Com. 
Dig.  431;  Oro.  JOG.  590;  3  Atk.  193,390;  1  Wils.  140;  2 
Str.  1175;  1  Johns.  440;  6  Johns.  54;  2  Bin.  532 ;  4  Dal. 
App.12;  2  Mass.  554;  3  Mum.  510 ;  7  Ora.  459;  Co.  IM. 
125. 


The  opinion  of  the  court  was  delivered  by 

•WT  ^"N          T 


KlRKPATRICK,  C.  J. 

This  is  a  special  verdict  in  ejectment  taken  at  the  Cumberland 
circuit  in  June,  1816.  The  devise  *which  it  presents,  and  upon 
which  the  controversy  turns,  is,  in  substance,  this : 

1  give  att  my  lands  to  my  nephew,  Stephen  Sheppard,  his  heirs 
and  assigns,  forever ;  but  in  case  he  should  die  before  he  arrives 
to  lawful  age,  or  have  lawful  issue,  then  over  to  his  nephew, 
John  Sheppard,  and  his  two  nieces,  Hannah  Sheppard  and 
Louisa  Sheppard,  equally  to  be  divided  &c. 

The  question  raised  upon  this  devise  for  the  consideration  of 
the  court,  respects  the  estate  which  Stephen  Sheppard  took  under 
this  will ;  whether  an  estate  tail  with  a  contingent  remainder,  or 
an  estate  in  fee  with  an  executory  devise  only,  to  John,  Hannah 
and  Louisa.  If  the  former,  it  is  admitted  on  all  hands  that  the 
plaintiff  is  entitled  to  recover,  and  if  the  latter,  that  judgment 
must  be  for  the  defendant.  It  will  not  be  material  for  us, 
therefore,  to  take  notice  of  the  events  which  passed  after  the 
death  of  the  testator.  They  cannot  change  the  nature  of  that 
estate.  The  question  is  upon  the  devise  itself;  the  parties  have 
agreed  as  to  the  consequences.  The  course  which  the  argument 

*416 


2  SOUTH.]  FEBRUARY  TERM,  1819.  489 

Den  v.  Taylor. 

at  the  bar  has  taken  in  this  cause  has  induced  sundry  observa- 
tions which,  otherwise,  would  have  been  deemed  altogether 
unnecessary.  They  touch  either  self-evident  propositions  or 
principles  so  well  settled  as  long  since  to  have  ceased  to  be  the 
subject  of  controversy.  I  will  rest  upon  them,  however,  but  for 
a  moment,  and  then  apply  them,  as  well  as  I  can,  to  the  ques- 
tion before  us. 

Upon  the  inspection  of  the  whole  will,  it  cannot  escape  obser- 
vation that  Stephen  Sheppard,  the  devisee,  was  the  object  of  the 
testator's  special  bounty ;  he  bore  his  name ;  he  was  to  take  the 
estate  singly  and  alone,  and  in  preference  to  the  other  nephew 
and  nieces ;  he  was  selected  as  the  successor  to  the  inheritance. 
Such  construction,  therefore,  is  to  prevail  as  will  carry  these 
views  of  the  testator  into  effect,  so  far  as  that  can  be  done  con- 
sistently with  the  rules  of  law. 

The  devise  in  the  principal  clause  is  to  Stephen  Sheppard,  his 
heirs  and  assigns  forever.  These  words,  standing  singly  and 
alone,  carry  an  estate  in  fee  simple — the  greatest,  generally  speak- 
ing, that  can  be  in  lands  ;  they  leave  no  remainder  which  can 
be  limited  over  after  that  estate  is  spent ;  for  it  is  considered  in 
the  law  as  unlimited,  and  therefore  can  have  no  remainder — as 
infinite,  and  therefore  can  never  be  spent. 

It  is  admitted,  however,  that  these  words,  though  standing 
*singly  and  alone  in  the  principal  or  devising  clause,  may  never- 
theless be  limited  in  their  application  by  other  words  in  subse- 
quent clauses  so  as  to  extend  only  to  special  heirs,  as  heirs  of  the 
body,  and  instead  of  creating  a  fee  simple,  to  create  an  estate 
tail  only.  To  refer  to  authorities  to  prove  this  would  be  wholly 
useless,  for  they  are  almost  innumerable.  It  is  as  well  settled 
that  a  devise  to  one  and  his  heirs,  and  if  he  die  without  issue 
then  over  to  another,  creates  an  estate  tail,  as  if  the  principal 
devise  had  been  in  the  most  technical  language  to  him  and  the 
heirs  of  his  body.  The  words  of  the  devise  over,  if  he  die 
vnthout  issue  then  over  to  another,  limit  the  generality  of  the 
term  heirs  in  the  principal  devise  and  lead  us  to  the  inevitable 
conclusion  that  the  testator  intended  heirs  of  the  body  only,  and 
not  heirs  generally.  And  whenever  this  intention  can  be  col- 
Mi? 


490  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Den  v.  Taylor. 

lected  from  the  whole  will  taken  together,  let  the  phraseology  in 
the  particular  clauses  of  it  be  what  it  may,  it  has  been  always 
construed  to  make  an  estate  tail. 

The  modes  of  expression  to  be  found  in  our  books  which  have 
received  this  construction  are  very  many.  They  sometimes  ap- 
ply more  clearly  to  the  principal  devise,  and  sometimes  less  so, 
so  that  this  doctrine  of  contingent  remainders  and  executory 
devises  so  frequently  arising  upon  them  has  become  one  of  the 
most  subtle  and  intricate  doctrines  of  the  law. 

To  disentangle  ourselves  from  these  niceties,  and  to  ascertain 
with  the  greater  precision  the  intention  of  the  testator  in  cases 
of  this  kind,  we  inquire,  first  of  all,  whether  the  devise  over  is 
to  take  effect  upon  the  indefinite  failure  of  the  issue  of  the  first 
devisee,  which  by  possibility  may  not  be  for  a  hundred  or  a 
thousand  years,  or  upon  a  definite  failure  of  such  issue,  which 
must  happen,  if  at  all,  within  a  given  time,  as  at  .or  before  his 
death.  If  upon  the  former  it  will  limit  the  generality  of  the 
term  heirs  and  be  an  estate  tail  with  a  remainder  over,  and  if 
upon  the  latter  it  will  not  so  limit  the  term  heirs,  but  will  be  a 
fee  limited  by  way  of  executory  devise.  There  can  be  no  ex- 
ception to  this  rule.  It  arises  upon  the  very  nature  of  the  thing 
itself.  The  whole  force  of  the  argument  for  this  constructive 
limitation  of  the  term  heirs  rests  upon  it.  Take  this  case,  for 
instance.  The  principal  devise  is  to  one  and  his  heirs ;  the  de- 
vise over  is  that  if  he  shall  die  without  issue  it  shall  go  to 
another,  and  the  conclusion  drawn  from  thence  is,  that  because 
he  has  *given  over  the  estate  after  the  failure  of  such  issue,  the 
testator,  by  the  term  heirs  in  the  principal  devise,  must  have  in- 
tended heirs  of  the  body  and  not  heirs  general,  otherwise  he 
could  not  have  given  over  the  estate,  for  the  law  does  not  con- 
template a  failure  of  heirs  general.  It  is  the  giving  over  of  the 
estate  then  upon  the  failure  of  the  issue  that  raises  the  argument ; 
the  conclusion  is  not  drawn  at  all  from  his  speaking  about  issue, 
but  wholly  from  his  giving  the  estate  over  to  another  on  the 
failure  of  that  issue  ;  for  let  him  have  said  what  he  would  about 
issue  in  the  devise  over,  if  he  had  not  made  the  estate  over  to 
depend  upon  the  failure  of  it,  it  would  not  have  so  qualified  the 

*418 


2  SOUTH.]  FEBRUARY  TERM,  1819.  491 

Den  v.  Taylor. 

word%A«Vs  in  the  preceding  devise  as  to  make  it  an  estate  tail. 
In  the  case  of  Pells  v.  Brown,  Cro.  Jac.  590,  the  devise  is  to 
Thomas  and  his  heirs,  and  if  he  die  without  issue,  living  William, 
then  to  William.  Now  here  in  the  devise  over  the  testator  speaks 
of  the  issue  of  Thomas  and  of  his  dying  without  issue,  but  as 
the  estate  is  not  to  go  over  upon  the  failure  of  it,  but  upon  a 
different  contingency,  it  is  held  not  to  be  an  estate  tail  but  a  fee. 
Nay — indeed,  it  is  a  standing  rule  that  if  an  estate  in  fee  be 
limited  over  after  a  death  without  issue,  but  upon  another  con- 
tingency, that  is,  a  contingency  different  from  the  failure  of  the 
issue,  it  does  not  make  an  estate  tail  with  a  remainder,  but  it 
remains  a  fee  with  an  executory  devise  over.  It  is  the  rule  upon 
which  Comyn,  in  his  digest,  places  the  distinction  in  the  collec- 
tion of  his  cases.  It  is  a  principle  so  plain  that  it  is  almost 
insusceptible  of  argument,  and  certainly  so  plain  that  it  needs 
none. 

Let  us  proceed,  then,  to  inquire  whether  in  this  case  the  devise 
over  to  John,  Hannah  and  Louisa  is  to  take  effect  upon  the 
indefinite  failure  of  the  issue  of  Stephen,  or  upon  some  other 
contingency ;  and  in  doing  this  let  us  remember  that  the  words 
usually  employed  in  those  devises  over  are  not  to  be  understood 
in  their  common  acceptation,  but  according  to  that  sense  which 
the  law  has  put  upon  them  in  such  cases.  As  if  a  devise  be  to 
a  man  and  his  heirs,  and  if  he  die  without  issue,  or  without  leaving 
issue,  or  without  issue  surviving  him,  or  words  to  that  effect,  then 
to  another.  A  plain  man  would  say  that  if  such  devisee  should 
have  issue  and  should  leave  such  issue  surviving  him  at  the  time 
of  his  death,  the  estate  should  not  go  over,  for  that  the  contin- 
gency upon  which  it  was  limited  had  not  happen*ed — he  had  not 
died  without  leaving  issue ;  and  this  seems  to  be  the  natural 
import  of  the  language.  But  still  that  is  not  the  sense  in  which 
it  is  to  be  understood  in  the  law  when  applied  to  devises  of  land  ; 
there  it  means  an  indefinite  failure  of  issue;  and  therefore, 
though  such  devisee  should  leave  issue  living  at  the  time  of  his 
death,  yet  such  devise  over  is  not  defeated,  but  shall  go  to  the 
remainder-man,  or  his  heirs,  when  such  issue  fails,  how  remote 
soever  that  period  may  be.  This  will  not  be  controverted. 

*419 


492  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Taylor. 


But  what  particular  words  or  modes  of  expression,  notwith- 
standing, are  to  be  so  construed  as  to  limit  an  estate  upon  such 
indefinite  failure  of  issue,  and  what  not,  has  at  all  times  been  a 
fruitful  source  of  controversy.  The  very  case  before  us  is  one 
proof  of  this.  Here  the  words  in  the  devise  over,  which  are 
supposed  to  make  such  a  limitation,  are  these,  and  if  he  shall  die 
before  he  have  lawful  issue,  then  over  &c.  I  have  not  been  able 
to  find  a  case  where  those  words,  or  words  of  exactly  similar 
import,  standing  alone,  have  been  holden  to  limit  the  term  heirs, 
in  a  preceding  clause,  or  to  convert  that  into  an  estate  tail  which 
otherwise  would  have  been  a  fee  simple.  In  a  certain  connection, 
indeed,  they  are  so  construed  in  the  case  of  Newton  v.  Barnar- 
dine,  Moore  127,  but  that  construction  arises  from  that  particu- 
lar connection,  and  not  from  the  import  of  the  words  simply 
considered.  There  the  question  was  whether  they  would  raise 
an  estate  tail  by  implication,  and  not  whether  they  would  limit 
an  estate  in  fee  already  expressly  devised.  There  is,  also,  in  the 
case  of  Panbury  v.  Elkin,  2  Vern.  766,  something  of  the  same 
kind  laid  down,  but  it  is  in  so  loose  and  unsatisfactory  a  manner 
that  we  cannot  rely  much  upon  it.  Certain  it  is,  that  the  words 
themselves  are  not  apt  words  to  create  such  a  limitation.  They 
assume,  as  the  very  contingency  upon  which  the  estate  shall  go 
over,  that  Stephen  shall  die  before  he  have  lawful  issue,  and  not 
that  the  issue  which  he  may  have  shall  fail.  How,  then,  can 
they  be  said  to  limit  the  inheritance  to  an  isstte  which,  upon 
that  very  assumption,  never  can  exist?  But  I  do  not  rest 
altogether  upon  this,  for  the  mere  form  of  words  is  nothing,  the 
intention  is  all. 

But  even  if  those  words,  if  he  die  before  he  have  lawful  issue, 
were  such,  when  standing  alone,  as  to  be  universally  taken  to 
create  such  limitation,  yet  it  is  not  conclusive,  for  here  they  are 
connected  with  other  words  which  govern  their  application,  and 
*which,  if  well  considered,  will  settle,  with  precision,  their  effect 
in  this  devise.  After  giving  the  estate  to  his  nephew,  Stephen 
Sheppard,  his  heirs  and  assigns,  he  says,  but  in  case  he  shall  die 
before  he  shall  arrive  at  lawful  age  or  have  lawful  issue,  then  over 
&c.  Now,  according  to  the  terms  of  this  devise  over,  taken 

*420 


2  SOUTH.]          FEBRUARY  TERM,  1819.  493 

Den  v.  Taylor. 

exactly  as  they  stand,  and  according  to  their  grammatical  con- 
struction, if  Stephen  shall  marry  and  have  issue,  a  son,  and  then 
die  before  he  arrives  at  the  age  of  twenty-one  years,  the  devisees 
over  will  take  the  estate,  for  in  that  case,  though  he  will  not  die 
without  lawful  issue,  yet  he  will  die  before  he  arrives  to  lawful 
age.  All  the  cases  upon  the  subject  of  alternate  contingencies, 
as  well  as  the  plain  import  of  the  language,  show  that  this  would 
be  so.  In  disjunctivis  sufficii  cdteram  partem  esse  veram.  Co. 
Lift.  225.  Indeed,  so  obviously  is  this  true,  that  in  the  case  of 
Soule  v.  Gerard,  Cro.  Eliz.  525,  on  a  devise  similar  to  this,  in 
order  to  enable  them  to  make  it  an  estate  tail,  the  court  was 
obliged  to  say  that  that  part  of  the  devise  over  which  respected 
his  attaining  the  age  of  twenty-one  years,  was  void.  If,  then, 
this  be  so,  upon  the  events  which  I  have  stated,  the  estate  would 
take  effect,  not  upon  the  failure  of  the  issue  of  Stephen,  but  upon 
a  different  contingency,  and  before  such  failure  of  issue  had 
happened. 

Besides,  as  the  going  over  of  the  estate  in  this  way,  living  the 
issue  of  Stephen,  would  be  exceedingly  unreasonable  in  itself,  so 
it  would  be  contrary  to  the  intention  of  the  testator  clearly,  to  be 
collected  from  the  whole  will  ;  for  it  is  impossible  to  conceive 
that  under  such  circumstances  he  would  have  disinherited  the 
son  of  Stephen,  the  nephew  whom  he  had  distinguished  by  his 
particular  favor.  In  order  to  give  a  more  rational  construction 
to  devises  of  this  kind,  and  to  come  nearer  the  intention  of  the 
testator  therein,  the  courts  of  justice  have  thought  themselves 
bound  to  say  that,  in  those  cases,  the  disjunctive  or  may  be  con- 
strued to  mean  and,  and  the  conjunctive  and  to  mean  or,  as  may 
best  subserve  the  general  intent  of  the  devisor,  (a)  This,  there- 
fore, has  become  a  settled  rule  of  construction.  It  was  so  deter- 
mined in  the  case  of  Soule  v.  Gerard,  above  mentioned,  more 
than  two  hundred  years  ago.  And  though  that  case  is  not  to  be 
depended  upon  as  to  the  principal  matter,  the  doctrine  of  execu- 


(o)  Nevison  v.  Taylor,  S  Hal.  4$  ;  Den,  Brown  v.  Mugway,  S  Or.  SSO  ; 
Abraham*  v.  English,  £  Harr.  SSO;  Den,  Nelson  v.  Combs,  S  Harr.  38;  Den 
v.  Allaire,  Spen.  19  ;  Holcomb  v.  Lake,  4  Zab.  688  ;  affirmed  in  error,  1  Dutch. 
60S;  Ely  v.  Ely.  5  C.  E.  Gr.  44. 


494  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Den  v.  Taylor. 

tory  devises  not  having  been  then  well  settled,  yet  as  to  this  par- 
ticular, the  principle  of  it  has  prevailed  ever  since,  with  *but  one 
exception  that  I  can  find.  That  exception  is  in  the  case  of  Wood- 
ward v.  Glassbrook,  2  Vernon  388,  where  Lord  Chief-Justice 
Holt  expressed  a  different  opinion.  But,  though  great  consider- 
ation is  to  be  given  to  that  opinion,  yet  it  stands  alone  on  that 
side,  and  therefore  cannot  overthrow  the  rule.  In  Hilliard  v. 
Jennings,  1  Ld.  Raym.  505,  he  inclined  to  the  same  opinion, 
but  in  that  case  there  was  no  decision  on  this  point.  On  the 
other  side  we  have  the  cases  of  Barker  v.  Suretees,  2  Sir.  1175  / 
Frammingham  v.  Brand,  1  Wil.  llj,0,  the  same  case  with  Lord 
Chancellor  Hardwicke's  argument,  3  Atk.  390,  and  Walsh  v. 
Peterson,  3  Atk.  193,  all  which  go  upon  the  same  ground  and 
in  support  of  the  rule.  And  if  we  should  indulge  ourselves  in 
looking  into  the  juridical  history  of  Westminster  hall,  as  well  as 
that  of  the  chambers  of  justice  in  our  neighboring  states,  we 
should  find  that  to  be  the  prevailing  opinion  ever  since.  It  must 
be  admitted,  indeed,  that  it  has  been  the  subject  of  much  litiga- 
tion, and  that  in  some  instances  it  has  drawn  forth  the  powers 
of  some  of  the  ablest  men  in  opposition  to  it ;  but  still  it  has 
prevailed,  and  therefore  seems  to  be  the  more  firmly  settled. 

If,  then,  we  apply  this  rule  to  the  present  case,  and  read  the 
devise  over  in  these  words,  and  if  Stephen  shatt  die  before  he  ar- 
rives to  lawful  age,  and  have  lawful  issue,  it  will  show  incontro- 
vertibly  that  this  devise  over  was  not  intended  to  take  effect  upon 
the  indefinite  failure  of  the  issue  of  Stephen,  but  upon  a  certain 
contingency  connected  with  that  event  which  must  take  place,  if 
at  all,  at  or  before  his  age  of  twenty-one  years. 

In  whatever  light,  then,  this  devise  may  be  viewed,  whether 
as  standing  upon  the  words  dying  before  he  have  lawful  issue, 
dying  before  he  arrives  to  lawful  age,  or  have  lawful  issue,  or  dying 
before  he  arrives  to  lawful  age  and  have  lawful  issue,  the  effect  of 
it  is  the  same.  It  gives  to  Stephen,  the  devisee,  an  estate  in  fee, 
with  a  limitation  to  John,  Hannah  and  Louise,  by  way  of  ex- 
ecutory devise,  and  not  an  estate  in  tail  with  a  remainder  over. 

*421 


2  SOUTH.]          FEBRUARY  TERM,  1819.  495 


Harris  r.  White. 


*WILLIAM  HARRIS 

V. 

JOHN  MOORE  WHITE  and  ELEAZER  MAYHEW,  surviving 
executors  of  ISAAC  HARRIS,  deceased. 

If  executor  voluntarily  pay  legacy  without  refunding  bond,  and  afterwards 
the  estate  be  found  to  be  insolvent,  if  legatee  sues  for  debt  due  him  from  testa- 
tor, the  executor  may  set  off  what  he  has  paid  upon  the  legacy  beyond  the  pro- 
portion which  ought  to  have  been  paid,  (a) 


In  debt. 

This  action  was  brought  on  a  judgment  by  default,  obtained 
in  this  court  November  term,  1813,  against  the  defendants  as 
surviving  executors  of  Isaac  Harris,  deceased,  for  $553.28,  for  a 
debt  due  from  Isaac  Harris  in  his  lifetime  to  the  plaintiff,  and 
suggesting  a  devastavit  by  the  defendants. 

There  was  a  plea  of  payment  of  the  judgment  October  10th, 
1814,  with  notice  of  set-off  for  goods  sold  and  delivered  by  de- 
fendants to  plaintiff,  and  for  money  had  and  received  by  the 
plaintiffs  to  the  use  of  the  defendants. 

On  the  trial  of  the  cause  at  the  Cumberland  circuit,  in  June, 
1818,  the  defendants  offered  to  prove  that  Isaac  Harris,  by  his 
last  will  and  testament,  bequeathed  to  the  plaintiff  a  pecuniary 
legacy  of  $650,  which,  on  the  29th  day  of  August,  1808,  they 
paid  to  the  plaintiff;  that  on  a  settlement  of  the  accounts  of  the 
defendants  as  executors  of  the  said  Isaac  Harris,  deceased,  in  the 
orphans  court  of  the  county  of  Salem,  at  December  term,  1813, 
a  balance  of  remained  in  their  hands,  which  is  not 

sufficient  to  pay  all  the  pecuniary  legacies  bequeathed  in  the  will 
of  the  said  Isaac  Harris ;  and  that  the  plaintiff  had  received  of 
the  defendants  a  greater  sum  on  account  of  his  legacy  than  he 
was  entitled  to  receive.  This  evidence  was  objected  to  by  the 
counsel  for  the  plaintiff,  and  overruled.  A  verdict  was  rendered 

(a)  Cited  in  Lloyd  v.  Rom,  Spm.  GS4 ;  see  GUI  ads.  Dnunmond,  1  South. 
£95. 

*422 


496  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Harris  v.  White. 


for  the  plaintiff  for  $493.68.  On  the  return  of  the  postea  the 
defendants  obtained  a  rule  to  show  cause  why  a  new  trial  should 
not  be  awarded.  It  was  agreed,  if  the  court  were  of  opinion 
that  the  evidence  was  properly  overruled,  judgment  was  to  be 
entered  for  the  plaintiff  for  the  amount  of  the  verdict  and  inter- 
est. If  of  a  contrary  opinion,  judgment  to  be  entered  for  such 
sum  as  should,  on  calculation,  appear  to  be  due,  after  allowing  the 
proportion  of  the  legacy  which  ought  to  be  refunded. 

The  question  was  submitted  without  argument,  but  the  court 
was  referred  by  Elmer,  counsel  for  the  plaintiff,  to  Pat.  J.  Laws 
266;  Bui  N.  P.  181;  Saun.  Rep.  2 16,  note  8 ;  1  Vern.  Rep. 
90,  453,  460;  2  Vern.  Rep.  205;  2  Ves.  194;  3  Eq.  Gas.  Abr. 
558;  Gas.  26;  4  Bac.  Abr.  tit.  "Legacies"  p.  427,  Wik.'jed. 

*The  court  was  referred  by  White  and  Armstrong,  counsel  for 
the  defendant,  to  4  BOG.  Abr.  427,  4%8  tit.  "  Legacies." 

KIRKPATRICK,  C.  J. 

This  case  is  submitted  to  the  consideration  of  the  court  without 
argument.  It  is  not  quite  so  fully  stated  as  could  have  been 
wished,  and  yet,  perhaps,  we  may  collect  from  it  all  the  materials 
necessary  for  a  just  decision.  It  states,  in  substance,  that  Wil- 
liam Harris,  the  plaintiff,  was  both  a  legatee  and  a  creditor  of 
Isaac  Harris,  the  testator ;  that  the  executors  paid  him  his  legacy 
in  full ;  that  he  sued  them  for  his  debt  and  obtained  a  judgment 
by  default ;  and  that  this  action  is  upon  that  judgment,  suggest- 
ing a  devastavit.  The  executors  plead  payment,  and  offer  to  give 
in  evidence,  by  way  of  set-off,  that  upon  the  final  settlement  of 
the  estate  it  proves  to  be  insufficient  to  pay  both  debts  and  lega- 
cies ;  that,  therefore,  William  Harris  has  received  more  than  his 
proportion,  and  is  bound  to  refund,  and  that  they  ought  to  be 
allowed  to  set  up  the  sum  so  to  be  refunded,  against  his  debt. 

I  shall  take  it  that  the  defendants,  as  executors  of  the  will  of 
Isaac  Harris,  paid  to  William  Harris,  the  plaintiff,  his  legacy  of 
$650  in  full  count,  voluntarily,  without  suit,  and  without  taking 
a  refunding-bond ;  that  they  afterwards  settled  their  accounts  in 

*423 


2  SOUTH.]  FEBRUARY  TERM,  1819.  497 


Harris  r.  White. 


the  orphans  court  of  the  proper  county ;  that  upon  such  settle- 
ment the  estate  proved  to  be  insufficient  to  pay  debts  and  lega- 
cies ;  and  that  therefore  they  call  upon  this  legatee  to  refund  in 
favor  of  such  deficiency.  And  if  this  be  so,  the  case  will  present 
these  two  questions : 

1.  Whether  William  Harris,  the  legatee  and  the  plaintiff  in 
this  cause,  is  liable  to  refund  to  the  executoi'8  at  all  for  this  pur- 
pose ;  and  if  so— 

2.  Whether  the  sum  to  be  refunded  can  be  set  up  against  him 
by  way  of  set-off  in  this  action. 

1.  The  first  of  these  appears  to  me  to  be  an  important  ques- 
tion, and  I  could  have  wished  to  hear  it  discussed  at  the  bar ; 
but  as  it  is  I  will  make  a  few  observations  upon  it,  indicating 
my  present  impressions,  and  leaving  it  to  be  spoken  to  after- 
wards if  it  shall  be  thought  necessary. 

It  is  well  settled  that  if  the  estate  of  the  testator  be  insuffi- 
cient originally,  and  without  the  waste  of  the  executor,  to  pay 
debts  and  legacies,  the  pecuniary  legacies  shall  abate  proportion- 
ably  *in  favor  of  the  debts  first,  and  then  in  favor  of  one 
another ;  and  after  they  are  exhausted  the  specific  legacies  shall 
contribute  in  like  manner  in  favor  of  debts,  but  never  in  favor 
of  pecuniary  legacies.  This  is  the  rule. 

In  order  to  carry  it  the  more  easily  into  effect,  the  spiritual 
court  in  England,  upon  a  suit  for  a  legacy,  will,  at  the  request 
of  the  executor,  compel  the  legatee  to  give  bond  and  security  to 
refund  in  case  the  estate  should  prove  to  be  deficient ;  and  if  the 
court,  after  such  request,  should  proceed  without  such  bond,  a, 
prohibition  will  go  from  the  chancery.  The  same  course  is  pre- 
scribed by  our  statute  here  upon  commencing  a  suit  for  a  legacy 
in  our  common  law  courts.  But  yet,  this  refunding-bond  does 
not  create  the  duty  oi«  obligation  to  refund ;  that  exists  in  the 
fundamental  principles  of  the  law  itself;  it  is  the  condition  or 
trust  (says  Gilbert  in  his  Lex  Prcetwia)  upon  which  the  legatee 
receives  the  legacy,  and  the  bond  is  merely  to  sf  2ure  the  per- 
formance of  that  condition  or  trust;  and,  therefore,  if  such  Ixmd 
should  not  be  taken,  it  does  by  no  means  follow  that  the  duty 
ceases,  ir  that  the  obligation  is  discharged. 
*424  32 


498  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Harris  v.  White. 


Hence  we  find  that  if  a  legacy  be  decreed  in  chancery,  though 
there  be  no  bond  taken,  yet  if  there  be  a  failure  of  assets,  the 
common  justice  of  the  court  will  compel  the  legatee  to  refund. 
1  Fern.  90.  So,  too,  if  upon  an  undertaking  to  pay  a  legacy 
there  be  an  action  of  assumpsit  in  a  court  of  common  law  and  a 
judgment  thereupon,  though  there  be  no  bond,  the  legatee  shall 
refund.  Cowp.  284-  Indeed,  it  is  a  general  principle  that  if 
there  be  a  deficiency  of  assets,  without  waste,  and  the  executor 
pay  one  legatee  in  full,  the  other  legatees,  as  well  as  the  credit- 
ors, may  ultimately  follow  the  assets  into  the  hands  of  such 
legatee  and  compel  him  to  refund  for  their  benefit ;  and  even  in 
case  of  waste  the  same  thing  may  be  done  by  creditors,  but  not 
by  legatees,  for  peradventure  they  might,  by  due  diligence,  have 
recovered  their  legacies  before  the  waste  committed,  and,  there- 
fore, it  is  their  own  negligence ;  they,  in  that  case,  can  look  to 
the  executor  only. 

I  conclude,  therefore,  that  the  executors,  in  this  case,  neglect- 
ing to  take  a  refunding-bond,  of  itself  and  simply  considered, 
does  not  exonerate  the  plaintiff  from  his  liability  to  refund  in 
favor  of  creditors  and  other  legatees. 

But  though  it  should  be  granted  that  this  be  so  as  to  the 
ulti*mate  rights  of  such  creditors  and  legatees,  yet  still  it  may 
be  said  that  these  executors  cannot  call  for  such  refunding,  for 
that  having  made  a  voluntary  payment  of  this  legacy,  without 
suit  and  without  bond  to  refund,  they  have  thereby  admitted  assets 
in  their  hands  for  that  purpose,  and  that  they  are  therefore  now 
totally  precluded  from  averring  the  contrary.  I  am  aware  that  we 
find  sayings  like  this  in  our  books ;  and  I  am  aware,  too,  that  some 
of  them  carry  it  still  further  and  say  that  such  voluntary  pay- 
ment is  a  confession  of  assets  not  only  for  the  particular  legacy 
paid,  but  also  for  all  other  legacies,  and  of  course  for  all  debts, 
for  they  are  to  be  paid  first. 

This  has  always  appeared  to  me  to  be  a  strange  doctrine,  and 
one  which  cannot  be  supported  upon  sound  principles  of  reason. 
This  admission,  which  is  to  conclude  the  executor,  frequently  to 
his  utter  ruin,  is  but  a  presumptive  admission  arising  by  con- 
struction, a  presumption  fixing  upon  him  an  assent  to  a  fact 

*425 


->UTH.]  FEBRUARY  TERM,  1819.  499 


Harris  t>.  White. 


which  he  never  intended  to  give,  and  raising  up  against  him  an 
acknowledgment  which  is  contrary  to  the  truth,  and  which  he 
never  actually  made.  That  such  voluntary  payment  should  be 
prima  facie  evidence  of  assets,  and  raise  a  presumption  to  that 
•effect  against  the  executor,  would  consist  with  the  principles  of 
evidence  in  other  cases,  but  that  it  should  preclude  him  entirely 
from  showing  the  truth,  is  contrary  to  all  principle.  The  ad- 
mission contended  for  certainly  is  not  an  express  admission,  but 
a  presumptive  one  only.  Now,  is  it  possible  that  a  court  admin- 
istering justice  shall  be  bound  to  take  this  presumption  in 
exclusion  of  the  naked  truth  laid  open  before  them  in  the 
judicial  records  of  the  very  tribunal  to  which  it  exclusively  be- 
longs to  ascertain  the  amount  of  the  assets  ?  And  yet  the  whole 
argument  here  rests  upon  taking  this  presumption  in  exclusion 
of  such  record. 

Will  it  be  said  that  an  executor  may  guard  against  this  dif- 
ficulty by  taking  a  refunding-bond  ?  It  is  true  he  may  do  so. 
But  if  the  duty  exists  and  the  bond  is  only  for  the  greater  secu- 
rity of  the  executor,  and  if  the  not  taking  of  it  is  for  the  benefit 
and  easement  of  the  legatee,  and  not  for  his  injury  or  loss,  how 
is  it  possible  that  he  can  set  it  up  in  his  defence  ?  Indeed,  it  is 
nowhere  pretended  that  he  can  set  it  up  per  se,  but  only  that  it 
goes  in  corroboration  of  the  admission  of  assets,  and  of  this  I 
have  before  spoken. 

*The  good  sense  of  the  thing  seems  to  be  that  the  executor 
.shall  be  responsible  for  the  estate  of  the  testator,  so  far  as  the 
same  comes  to  his  hands,  or  by  due  diligence  might  have  been 
reduced  into  his  possession,  but  for  nothing  more  ;  that  if  through 
misapprehension  or  mistake  he  shall  pay  a  legacy  in  full  count, 
and  debts  are  afterwards  discovered  of  which  he  had  no  notice, 
or  if  losses  are  sustained  upon  outstanding  risks,  responsibilities 
or  contingencies,  which  no  common  prudence  could  either  fore- 
see or  prevent,  so  that  the  estate  becomes  insufficient  to  pay  all, 
such  legatee  is  bound,  not  only  ex  equo  d  bono,  but  also  upon  the 
implied  conditon  on  which  he  received  his  legacy,  to  refund,  (a) 

(a)  See  Ely  v.  Norton,  1  Hal.  187. 

*426 


500  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Harris  v.  White. 


Such  payment,  it  is  true,  as  against  others,  would  be  a  devastavit 
in  the  executor  pro  tanto,  and  he  must  auswer  it  out  of  his  own 
goods,  but  it  would  be  pro  tanto  only ;  nor  does  this  at  all  mili- 
tate against  the  responsibility  of  the  legatee  who  has  received  the 
money,  or  in  any  manner  or  way  discharge  him  from  his  liability 
to  refund  to  the  executor. 

It  must  be  admitted,  however,  that  there  is  a  train  of  cases, 
which  though  somewhat  contradictory  to  one  another,  seem  to 
countenance  this  doctrine,  and  some  of  them  to  speak  of  it  aa 
settled  law.  Yet  I  am  inclined  to  think  that  if  these  cases  be 
carefully  examined,  and  stripped  of  all  gratuitous  sayings,  they 
will  be  found  to  turn  upon  particular  circumstances,  and  by  no 
means  to  support  the  doctrine  in  the  extent  in  which  it  is  some- 
times laid  down.  But  as  I  am  diffident  of  my  own  judgment 
upon  this  subject,  and  it  is  my  intention  at  present  rather  to  in- 
vite investigation  than  to  express  an  opinion,  I  shall  not  now 
enter  upon  such  examination. 

If  my  impressions  upon  this  first  question  should  be  found  to 
be  well  grounded,  then  we  have  only  to  inquire  further — 

2.  Whether  the  sum  so  to  be  refunded  can  be  set  up  against 
the  plaintiff  by  way  of  set-off  in  this  action. 

In  considering  this  we  may  lay  out  of  the  case  all  objections 
as  to  the  length  of  time,  for  none  such  were  set  up  at  the  trial ;. 
and  if  there  had  been,  probably  the  duty  would  have  been  con- 
sidered as  arising,  in  certainty,  at  the  time  of  the  settlement  be- 
fore the  orphans  court,  and  not  before. 

The  only  thing,  then,  to  be  inquired  of  is  whether  the  money  so 
to  be  refunded  would  belong  to  the  executors,  as  such,  or  in  their 
own  private  right ;  for  if  in  their  own  private  right,  it  could  *not 
be  set  up  by  them  in  this  action.  And  if  it  be  true,  as  Lord 
Keeper  Finch  says  in  Chamberlain  v.  Chamberlain,  1  Ch.  Cos* 
257,  that  "  a  legacy  being  paid  remains  as  a  legacy  in  the  hands 
of  the  legatee  even  after  payment,  till  all  debts  are  paid,"  there- 
can  be  no  doubt ;  for  the  obvious  meaning  of  the  lord  keeper  is 
that  the  money,  even  in  the  hands  of  the  legatee  for  this  pur- 
pose, continues  to  be  the  property  of  the  executor ;  the  legatee  is 
but  the  keeper  of  it  for*his  use.  Indeed,  the  whole  doctrine  of 

*427 


2  SOUTH.]  FEBRUARY  TERM,  1819.  501 

Den  v.  Uugg. 

refunding  goes  upon  the  principle  that  the  money  refunded  is 
assets  in  the  hands  of  the  executors  for  the  payment  of  debts. 

Unless  it  should  be  desired,  therefore,  by  the  counsel  to  speak 
to  the  subject,  I  should  incline  to  say  the  defendants  were  en- 
titled to  their  set-off,  and  that  the  judgment  upon  the  agreement 
must  be  entered  accordingly. 

Of  this  opinion  were  the  whole  court. 


JOHN  DEX,  on  dem.  of  William  Hugg,  v.  SARAH  HUGO. 

Devise  "  to  S.  to  hold  during  her  life,  and  after  her  death  to  the  heirs  of  her 
body,  if  any  such  her  surviving,  and  for  want  of  such  heirs  to  W.  and  the 
heirs  male  of  his  body,  if  any  such  him  surviving,"  S.  takes  estate  tail  general 
and  W.  vested  remainder  in  tail  male,  and  is  entitled  to  the  estate  after  the 
•death  of  R.,  a  daughter  who  survives  S.,  and  died  without  issue,  (a) 


In  ejectment. 

At  the  circuit  court  of  the  county  of  Gloucester,  October  term, 
1817,  the  following  case  was  stated  by  the  parties  for  the  opinion 
of  the  supreme  court. 

1st.  William  Hugg  (called  William  first),  being  seized  in  fee 
simple,  devised  the  premises  in  question  in  the  words  following, 
to  wit :  "  I  give  and  devise  to  my  daughter,  Sarah  Ellis,  my 
house  and  lot  of  ground  and  appurtenances  thereunto  belonging 
and  therewith  usually  enjoyed,  to  hold  to  her,  my  said  daughter 
Sarah,  for  and  during  her  natural  life,  and  after  her  decease  to 

(a)  See  Den,  Oranc  v.  Fogg,  Penn.  *819 ;  Den  v.  Robinson,  post  6S9 ;  Den, 
Ewan  v.  Cox,  4  Hnl.  10;  Den  v.  Fox,  5  Hal.  S9 ;  Den,  Doremus  v.  Zabritkie,  S 
•Or.  404;  Den,  Spachius  v.  Spaehius,  1  Hear.  17S ;  Den,  Wilton  v.  Sm<Mt  Spen, 
151;  Den,  Popino  v.  Cook,  f  Hal,  41;  Den,  Richman  v.  Baldwin,  1  Zab.  400; 
Moore  v.  Rake,  £  Dutch.  574  ;  Den,  Emms  v.  Evans,  Penn.  *967  ;  Den,  Shaw  v. 
Foxier,  Penn.  *10gl ;  Den,  Pinkerton  v.  Laquear,  1  South.  SOI ;  Morehowe  v. 
Cotheal,  1  Zab.  480  ;  Den,  James  v.  Du,  Bois,  1  Hirr.  S86  /  Fairchild  v.  Cron«, 
£  Beat.  105. 


502  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Den  v.  Hugg. 

the  heirs  of  her  body,  if  any  such  her  surviving,  and  for  want, 
of  such  heirs  to  hold  to  my  son,  "William  Hugg  [called  William 
second],  and  the  heirs  male  of  his  body,  if  any  such  him  surviv- 
ing, and  for  want  of  such  heirs,  to  my  sons,  Joseph  Hugg  and 
Samuel  Hugg,  their  heirs  and  assigns,  forever  [Joseph  was  the 
oldest  son  and  survived  his  father,  the  testator]."  Soon  after 
which  the  testator  died,  leaving  the  said  will  duly  executed  to 
pass  lands. 

2d,  Sarah  Ellis  died  December  25th,  1777,  leaving  one 
*daughter  named  Rebecca,  who  died  soon  after  her  said  mother, 
to  wit,  in  1778,  under  age  and  without  issue.  Upon  whose- 
death,  William  Hugg  second  entered  into  the  premises  in  virtue 
of  the  said  devise,  and  was  possessed  thereof. 

3d.  William  Hugg  second  had  issue,  William  Hugg  (called 
William  third),  Joseph  Hugg  and  Louisa  Hugg,  which  Joseph 
and  Louisa  are  yet  alive. 

4th.  William  Hugg  third,  oldest  son  of  William  Hugg  second, 
died  on  the  5th  of  August,  1807,  in  the  lifetime  of  his  father,, 
William  second,  leaving  issue,  to  wit,  William  Hugg  (William 
fourth),  his  eldest  son,  Ann  Hugg  and  Earl  Hugg, 

5th.  William  Hugg  fourth,  grandson  of  William  second,  is. 
the  lessor  of  the  plaintiff,  and  claims  the  whole  property  as  heir 
in  tail  male  by  descent  from  his  grandfather,  William  second. 

The  defendant  was  in  possession  of  the  premises  in  question.. 

If  the  court  were  of  opinion  that  the  plaintiff  is  entitled  to- 
recover,  then  judgment  to  be  entered  for  the  plaintiff;  if  other- 
wise, for  the  defendant. 

R.  Stockton,  for  plaintiff,  argued — By  the  will  the  premis&i 
were  devised  to  Sarah  Ellis  in  tail  general.  This  estate  was  ex- 
pended and  gone,  on  the  death  of  her  daughter,  Rebecca  Ellis, 
without  issue,  in  1778,  before  the  passage  of  the  statute  to  dock 
entails.  2.  The  remainder  is  given  to  William  Hngg  in  tail 
male,  and  this  estate  still  exists.  William  second  had  William 
third,  who  was  his  eldest  son  and  heir-at-law.  William  third 
died  before  his  father,  and  the  land  descended  to  William  fourth, 
who  is  the  lessor  of  the  plaintiff  and  third  tenant  in  tail.  The 

*428 


2  SOUTH.]  FEBRUARY  TERM,  1819.  503 

Den  r.  Hugg. 

only  question  can  be  whether  the  statute  converted  the  estate  into 
a  fee;  if  it  did  not,  then  the  plaintiff  is  entitled  to  judgment. 
The  court,  in  2  Penn.  819,  has  decided  that  the  descent  must  IKJ 
in  the  second  line  of  entailment,  and  the  lessor  is  the  second  per- 
son taking  in  the  second  line. 

Ewing,  for  defendant,  argued — That  the  lessor  can  claim  cmly 
under  the  will,  per  formcim  doni.  The  estate  of  William  the 
second  was  not,  at  all  events,  to  take  effect  or  vest  at  the  decease 
of  the  testator  or  of  Sarah  Ellis,  but  on  a  contingency  only,  viz., 
the  death  of  Sarah  Ellis,  without  surviving  heirs.  His  estate, 
therefore,  was  either  an  executory  devise  or  contingent  remainder, 
and  it  was  of  little  importance  which,  so  far  as  regarded  *the 
decision  of  this  cause.  That  the  estate  of  William  the  second 
never  vested,  and  therefore  William  the  fourth  cannot  take.  The 
remainder  was  defeated,  because  there  was  an  heir  of  Sarah  Ellis 
surviving  her.  The  contingency  was  to  happen  at  the  death  of 
Sarah  Ellis  and  not  at  any  future  period.  Her  surviving  child, 
if  she  had  any,  was  to  take  the  estate,  and  she  left  a  daughter 
Rebecca.  If,  therefore,  this  be  an  executory  devise,  it  fails,  be- 
cause, if  it  was  to  take  effect  at  her  death,  it  could  not  vest.  1  f 
it  was  to  take  effect  on  an  indefinite  failure  of  issue  it  was  void. 
4  Cm.  44$'  On  tne  decease  of  Rebecca  Ellis  the  estate  reverted 
to  the  heirs  of  the  testator. 

But  2.  If  AVilliam  second  did  take,  William  fourth  is  not 
entitled  to  recover ;  he  is  not  his  heir  male,  him  surviving.  He 
cannot  claim  in  his  own  right  because  he  is  not  heir  male  of  the 
body  of  William  second,  him  surviving ;  nor  in  right  of  his 
father,  by  descent,  because  William  third  never  took  any  estate 
in  the  premises ;  he  did  not  survive  his  father,  William  second. 
Fearn  on  Rem.  5. 

R.  Stockton,  in  answer.  William  second  took  a  vested  re- 
mainder in  tail  male,  not  a  contingent  remainder  or  executory 
devise.  The  words  "  heirs,  if  any  such  her  surviving,"  have  no 
operation  ;  or  if  any,  they  apply  to  Sarah  Ellis  and  her  heirs, 
and  restrict  only  to  the  heirs  living  at  her  death,  and  havi-  no 

*429 


504  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Den  v.  Hngg. 

effect  on  the  estate  of  William  second.  Com.  Dig.  "Devise"  let. 
R  5, 1$6.  The  intention  clearly  was  to  give  the  premises  to  Sarah 
Ellis  and  her  children  generally,  and  the  capacity  to  take  at  the 
contingency  is  the  real  criterion. 

Opinion  of  the  court. 

KIRKPATRICK,  C.  J. 

This  case  is  too  plain  to  admit  either  of  argument  or  illustra- 
tion. The  words  "if  any  such  her  surviving"  make  no  differ- 
ence either  in  the  sense  or  in  the  operation  of  the  devise.  Sarah 
Ellis  took  an  estate  tail  general,  and  William  the  second  took  a 
vested  remainder  in  tail  male,  as  devisees  under  the  will  of  their 
father.  This  remainder  to  William  was  limited  to  take  effect 
and  be  enjoyed  after  the  termination  of  the  particular  estate  de- 
vised to  Sarah  Ellis  and  the  heirs  of  her  body,  and  upon  the 
death  of  Rebecca,  her  only  daughter,  without  issue,  it  did  so 
take  effect,  and  the  said  William  actually  entered  into  and  be- 
came possessed  of  the  premises  so  devised,  and  continued  to  be 
so  thereof  possessed,  until  the  time  of  his  death. 

*We  have  then  only  to  inquire  who  was  the  heir  male  of  the 
body  of  William.  And  surely,  under  the  canons  of  descent  in 
the  common  law,  this  can  never  be  made  a  question  among  law- 
yers ;  for  it  is  well  known  that  the  male  must  be  preferred  to 
the  female ;  and  that  among  the  males,  the  elder  must  be  pre- 
ferred to  the  younger ;  and  it  is  also  well  known  that,  subject 
to  these  rules,  the  lineal  descendants,  to  the  remotest  generations, 
shall  represent,  that  is  to  say,  shall  stand  in  the  place  of  their 
ancestor  and  take  that  which  he  would  have  taken  if  living. 

Upon  these  principles  it  is  obvious  that  William  the  third,  if 
living,  would  be  the  heir  male  of  the  body  of  William  the 
second  in  exclusion  not  only  of  Louisa,  his  sister,  but  also  of 
Joseph,  his  brother.  And  it  is  equally  clear  that  William  the 
fourth,  in  exclusion  of  his  sister  Ann  and  his  brother  Earl, 
stands  by  right  of  representation  in  the  place  of  his  father,  and 
will  take  that  which  he  would  have  taken  if  alive.  William 
the  fourth,  then,  is  the  heir  male  of  the  body  of  William  the 

*430 


2  SOUTH.]  FEBRUARY  TERM,  1819.  505 

Den  v.  Hugg. 

second,  and  as  such  is  entitled  to  the  inheritance  per  formam 
doni.  , 

I  am  of  opinion,  therefore,  that  the  plaintiff  is  entitled  to 
recover,  and  that  judgment  be  entered  for  him  accordingly. 

Since  writing  the  foregoing,  I  have  been  favored  with  a  copy 
of  the  argument  of  the  defendant's  counsel  in  this  case,  which  is 
very  ingenious,  but  I  think  not  solid. 

It  is  admitted  in  that  argument  (or  rather  it  is  not  denied,  for 
indeed  it  cannot  be  denied)  that  if  the  words  if  any  such  her 
surviving  were  not  contained  in  the  devise,  Sarah  Ellis  would 
have  taken  an  estate  tail  general,  and  William  the  second,  a 
vested  remainder  in  tail  special — that  is,  in  tail  male.  It  seems 
to  be  admitted,  too,  that  even  as  it  stands,  Sarah  Ellis  took  an 
estate  tail ;  but  then  it  is  insisted  that  the  words  if  any  such  her 
surviving,  raise  up  a  contingency  upon  which  William's  re- 
mainder must  depend ;  that  Sarah  having  left  a  daughter,  Re- 
becca, surviving  her,  that  contingency  has  never  happened  nor 
can  now  happen ;  and  that,  therefore,  the  remainder  is  defeated. 

The  very  same  argument  might  be  used  in  every  case  where 
there  is  a  limitation  of  a  remainder  upon  a  dying  of  the  tenant  in 
tail  without  heirs  of  the  body,  or  without  issue,  or  without  leaving 
issue,  or  words  to  that  effect.  If  a  devise  were  to  one  and  the  heirs 
of  his  body,  and  if  he  die  without  such  heirs,  then  *over ;  and  if 
the  devisee  were  to  die  leaving  a  son,  it  might  be  said,  as  it  is  here 
said,  true  it  is  that  the  devisee  takes  an  estate  tail,  but  then  the 
words  if  he  die  without  such  heirs  raise  up  a  contingency  upon 
which  the  remainder  is  to  depend  ;  and  as  in  truth  and  in  fact  he 
has  not  died  without  such  heirs,  for  he  has  left  a  son  in  full  life, 
the  contingency  has  not  therefore  happened  nor  can  now  happen, 
and  of  course  the  remainder  must  fall.  But  however  plausible 
this  argument  might  be,  yet  certainly  it  would  be  plausible  only, 
and  not  conclusive.  And  the  reason  is  that  the  words  if  he  die 
ictthout  heirs  of  the  body,  without  issue,  without  leaving  issue,  with- 
out such  heirs  surviving  him,  and  equivalent  expressions  of  that 
kind,are  not  used  in  devises  of  land,  in  their  common  and  vulgar 
sense,  but  in  a  legal  and  technical  sense,  and  always,  when  un- 
qualified by  the  connection  in  which  they  stand,  signify  not  a 

*431 


506  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Den  v.  Hugg. 

definite  failure  of  issue  at  the  death  of  the  tenant  in  tail,  but  an 
indefinite  failure  thereof  at  any  future  period,  how  remote  soever 
the  same  may  be.  (a) 

What,  then,  can  be  the  effect  of  the  words  if  any  such  her  sur- 
viving, thus  annexed  to  the  word  heirs  in  this  devise  ?  Can  they 
at  all  qualify  the  meaning  of  it  ? 

An  heir  is  one  on  whom  the  law  casts  the  estate  immediately 
upon  the  death  of  the  ancestor.  It  is  such  a  one  him  (the  an- 
cestor) surviving,  for  the  law  never  casts  an  estate  upon  dead 
men.  These  words  then  can,  by  no  rational  construction,  add  tor 
alter,  change,  enlarge,  or  limit  the  meaning  of  the  word  heirs* 
The  devise  is  just  the  same  with  them  as  it  would  have  been 
without  them.  The  very  term  heir  necessarily  implies  that  he 
survives  the  ancestor. 

But  again.  Upon  a  careful  examination  we  shall  find  that  it 
these  words  do  raise  a  contingency,  it  is  a  contingency  attached 
to  the  devise  to  the  heirs  of  the  body  of  Sarah  Ellis,  and  not  to 
the  remainder  over  to  William  the  second.  It  is  to  Sarah  Ellis 
for  life,  and  after  her  decease  to  the  heirs  of  her  body,  if  any  such 
her  surviving,  and  for  want  of  such  heirs,  then  to  WiUiam.  Now 
suppose  we  were  to  make  out  in  words  the  alternate  of  this  pre- 
tended condition  or  contingency,  what  should  we  say  ?  Should 
we  not  say,  to  the  heirs  of  her  body,  if  any  such  her  surviving,  but 
if  none  such  her  surviving,  then,  not  to  the  heirs  of  her  body,  but 
for  want  thereof,  to  William  ?  This  is  the  alternate  most  obvi- 
ously presented  by  the  words  as  they  stand  con*nected.  The 
testator  does  not  place  the  remainder  upon  this  circumstance,  but 
upon  the  want  of  such  heirs,  heirs  of  the  body  evidently  mean- 
ing ;  and  certainly,  so  meaning,  it  will  better  effect  the  general 
intent  of  the  testator.  But  we  are  not  left  to  conjecture  on  this 
subject,  nor  even  to  the  deductions  of  reason.  The  testator  him- 
self has  settled  it.  He  has  said  that  for  want  of  such  heirs  (that 

(a)  Wallington  v.  Taylor,  Sax.  314;  Den  v.  Allaire,  Spen.  6;  Seddel  v.  Will*> 
Spen.  223  ;  Vreeland  v.  Blauvelt,  8  C.  E.  Or.  483  ;  Condict  v.  King,  2  Seas.  875  ; 
Wurts  v.  Page,  4  C.  E.  Gr.  365;  Den,  Harris  v.  Taylor,  ante  413;  Den,  Trum- 
b>M  v.  Gibbons,  2  Zab.  117 ;  Den,  Secquil  v.  Moore,  Cue  386;  Nix.  Dig.  1032 
\  27. 

*432 


2  SOUTH.]          FEBRUARY  TERM,  1819.  507 

Den  v.  Hugg. 

is,  heirs  of  the  body  of  William  the  second),  then  to  my  sons 
Joseph- Hugg  (who  was  his  eldest  son  and  heir-at-law)  and  Sam- 
ud  Hugg,  their  heirs  and  assigns  forever  ;  thereby  disposing  of 
the  whole  estate  and  leaving  no  reversion.  To  say,  therefore, 
that  he  intended  it  should  revert  to  his  heirs-at-law  upon  any 
intermediate  contingency,  or  that  it  should  at  all  come  into  his 
liaii«ls  before  the  failure  of  the  issue  male  of  William  the  second, 
or  in  any  other  way  or  proportion  than  by  the  words  of  the 
devise,  would  be  going  directly  contrary  to  the  express  declara- 
tions of  the  testator. 

Upon  the  most  critical  exposition  of  the  words,  then,  as  they 
are  used  and  understood  hi  the  language  of  the  law,  I  think  the 
construction  is  plainly  against  the  defendant,  and  as  to  the  gen- 
eral intent  it  completely  overwhelms  him.  Nothing  can  be 
more  obvious  than  that  the  testator  intended  to  give  this  property 
to  his  daughter,  to  be  enjoyed  by  her  during  her  lifetime,  and 
then  to  her  lineal  descendants,  and  when  they  failed,  to  his  son 
William  in  tail  male.  Now,  if  it  be  admitted  that  Sarah  Ellis 
took  an  estate  tail  general  there  must  have  been  some  part  of  the 
estate  left,  there  must  have  been  either  a  remainder  or  a  rever- 
sion for  somebody  upon  the  failure  of  her  issue.  Can  it  be  sup- 
posed that  this  was  intended  to  go  to  the  testator's  heir-at-law  ? 
He  certainly  attempts  to  make  an  estate  tail  and  to  limit  the  re- 
mainder over,  but  does  he  say  a  word  about  the  heir-at-law  or 
about  the  estate  returning  to  him  ?  Not  a  word.  Would  any 
rational  man,  upon  the  whole  will,  draw  the  conclusion  that  he 
intended  it  should  so  revert?  Well,  then,  on  the  other  hand,  if 
it  be  not  an  estate  tail  in  Sarah  Ellis,  but  for  life  only,  and  the 
words  heirs  of  the  body  can  be  tortured  to  mean  child  or  children, 
which  I  believe  in  such  a  connection  they  never  did  mean,  then 
such  child  or  children,  if  they  could  take  at  all,  must  take  an 
estate  for  life  only,  for  there  are  no  words  of  inheritance,  no 
words  of  perpetuity,  to  carry  a  fee  to  them,  and,  therefore,  if 
Rebecca,  the  only  child  of  Sarah  Ellis,  had  had  a  son  and  died, 
he  would  not  have  *taken,  for  his  mother  had  but  an  rotate  li>r 
life  only,  and  the  inheritance  must  have  gone  to  the  heir-at-law, 
as  in  the  other  case,  in  exclusion  of  the  whole  family  of  Sarah. 

*433 


508  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Stansbury  v  Patent  Cloth  Manufacturing  Co. 

Could  this  have  been  the  testator's  intention  ?  Shall  we,  then, 
torture  the  whole  instrument,  beat  down  the  testator's  arrange- 
ments and  prostrate  the  settlement  which  he  made  for  this  branch 
of  his  family  in  order  to  give  a  fanciful  application  to  words, 
which,  as  they  stand  in  this  will,  are  merely  superfluous  and 
without  meaning  ? 

As  to  the  second  ground  of  argument,  to  wit,  that  William 
fourth  is  not  the  heir  male  of  the  body  of  William  second,  I 
am  persuaded  that,  upon  a  more  careful  perusal  of  the  case,  it 
will  not  be  insisted  upon.  I  am,  therefore,  as  before,  of  opinion 
that  judgment  must  be  for  the  plaintiff. 

Judgment  for  plaintiff. 


ISAAC  STANSBURY  v.  THE  PATENT  CLOTH  MANUFACTURING 
COMPANY,  (a) 

WILLIAM  LAWRENCE  v.  the  same. 
ISAAC  MARSH  v.  the  same. 

1.  Amercement  of  sheriff. 

2.  Construction  of  the  act  for  relief  of  creditors  against  corporations. 


In  case.     Motion  to  amerce  the  sheriff  of  Essex  county. 

The  writs  of  summons  in  these  cases  were  all  returned  "  not 
summoned"  on  the  last  Tuesday  of  February,  1817.  The 
necessary  affidavit  that  the  process  could  not  be  served  was  made 
and  filed,  and  the  court  directed  an  order  for  the  appearance  of 
the  defendants,  to  be  entered  upon  its  minutes  at  February  term, 
1817,  and  published  pursuant  to  the  third  section  of  the  act 
passed  January  31st,  1817,  for  the  relief  of  creditors  against 
corporations.  The  defendants  did  not  cause  their  appearance  to 
be  entered,  and  at  the  term  of  May,  1817,  the  clerk,  by  direction 
of  the  court,  entered  an  appearance  for  them.  The  causes  were 


(a)  Reverse-!  on  writ  of  error,  post  861. 


2  SOUTH.]  FEBRUARY  TERM,  1819.  509 

Suiisluiry  r.  Patent  Cloth  Manufacturing  Co. 

regularly  put  at  issue,  and  at  the  circuit  in  Essex,  in  September, 
1817,  were  tried.  There  was  a  verdict  for  Stansbury  for  $292.- 
37,  costs,  $90.25;  for  Lawrence  for  $550.28,  costs,  $90.38; 
and  for  Marsh  for  $97,  costs,  $73.60.  The  whole  of  these 
verdicts  amounted  to  $1,193.88.  Judgments  were  enter*ed  on 
the  llth  of  November,  1817,  and  'executions  were  issued  on  the 
18th  of  the  same  month,  and  on  the  same  day  delivered  to  the 
sheriff  of  Essex,  and  by  him  levied  on  real  estate  of  the  defend- 
ant, and  advertisements  for  the  sale  immediately  made ;  several 
adjournments  took  place,  and  the  sheriff,  at  last,  altogether  re- 
fused to  sell  under  the  executions.  Writs  of  venditioni  exponaa 
were  also  issued,  returnable  to  May  term,  1818.  The  sheriff 
paid  $600  on  these  executions. 

On  the  7th  of  March,  1817,  the  defendant  confessed  a  judg- 
ment to  Joseph  Shotwell  for  $1,013.60,  and  another  to  John 
Jacobs  and  Joseph  Shotwell  for  $5,234.37,  which  judgments 
were  recorded  in  the  Essex  pleas  as  of  January  term,  1817. 
Executions  were  issued  on  these  judgments  and  on  the  8th  of 
March,  1817,  delivered  to  the  same  sheriff  of  Essex,  and  the 
-aid  real  estate  of  the  defendants  sold,  on  the  3d  of  October, 
1817,  for  the  sum  of  $4,200,  subject  to  prior  encumbrances. 
John  F.  Coxe  was  the  purchaser;  received  a  deed  from  the 
sheriff  and  has  since  sold  to  Abijah  Weston.  The  sale  by  the 
~li« -riff  was  subsequent  to  the  trials  at  the  circuit  but  previous  to 
the  judgments  at  bar.  Coxe  and  Weston  were  present  at  the  sale 
and  had  notice  that  the  first-mentioned  actions  were  depending, 
but  that  no  judgments  had  been  entered.  The  whole  property, 
real  and  personal,  of  the  defendants  in  Essex  was  sold  under  the 
executions  in  favor  of  Jacobs  and  Shotwell  and  of  Shotwell. 
The  real  estate  was  bound  by  mortgages  to  an  amount  exceeding 
•SI  1,000,  which  has  since  been  paid  by  the  purchaser,  Weston, 
and  he  has  also  expended  $1,500  in  necessary  and  useful  repairs. 

The  sales  amounted  to  $7,231.75,  and  the  sheriff  had  $ 
remaining  in  his  hands  after  paying  the  judgments  of  Shotwell 
and  of  Jacobs  and  Shotwell. 

The  actions  by  Lawrence,  Stansbury  and  Marsh  were  the  first 
which  were  commenced  against  the  defendant,  and  the  orders  for 

*434 


510  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Stansbury  v.  Patent  Cloth  Manufacturing  Co. 


the  appearance  of  the  defendants  in  those  actions  were  the  first 
which  were  made. 

Several  actions  against  the  defendant  were  brought  in  the 
common  pleas  of  Essex,  and  like  orders  made  subsequent  to 
those  before  mentioned,  and  judgments  by  default  obtained  pre- 
vious to  the  time  that  Stansbury,  Lawrence  and  Marsh  obtained 
their  judgments.  Executions  on  the  judgments  in  the  common 
*pleas  were  also  issued  and  put  into  the  sheriff's  hands  before 
those  in  favor  of  Stansbury,  Lawrence  and  Marsh. 

The  sheriff  paid,  out  of  the  proceeds  of  the  sales,  $  , 

on  the  executions  from  the  common  pleas  of  Essex,  in  preference 
to  those  out  of  the  supreme  court,  on  which  there  is  yet  due 
$613.88,  with  interest  from  the  llth  of  November,  1817.  He 
also  paid  the  whole  of  the  judgments  in  favor  of  Shotwell  and 
of  Jacobs  and  Shotwell. 

It  was  submitted  to  the  court  whether  the  first-mentioned 
actions  were  not  a  lien  upon  the  real  estate  of  the  defendant 
from  the  time  of  obtaining  the  orders  for  appearance  in  Feb- 
ruary, 1817,  and  whether  the  judgments  confessed  in  March, 
1817,  could  be  preferred  to  those  entered  in  November,  1817. 
Whether  the  judgments  by  default  in  the  common  pleas  are 
also  to  be  preferred  to  these  last. 

If  the  judgments  in  the  supreme  court  are  entitled  to  priority 
over  all  others,  then  it  was  agreed  that  the  sheriff  be  amerced  in 
the  sum  of  $613.18,  with  interest  from  the  llth  of  November, 
1817.  If  they  have  not  priority  over  the  judgments  confessed 
to  Shotwell  and  to  Jacobs  and  Shotwell,  but  have  priority  over 
the  judgments  by  default  in  the  common  pleas,  then  the  sheriff 
to  be  amerced  in  $  ,  the  sum  which  he  paid  on  the  last- 

mentioned  actions. 

Scudder,  for  the  plaintiffs,  in  support  of  the  motion  to  amerce, 
contended  that  the  "  Act  for  the  relief  of  creditors  against  cor- 
porations," passed  31st  of  January,  1817,  created  a  lien  on  the 
property  of  the  defendant  after  the  entry  of  the  order  mentioned 
in  the  third  and  fourth  sections.  This  act  being  in  force  from 
its  passage,  and  the  order  of  publication  in  these  suits  being 

*435 


2  SOUTH.]  FEBRUARY  TERM,  1819.  511 

Stansbury  r.  Patent  Cloth  Manufacturing  Co. 

entered  on  the  last  Tuesday  in  February,  the  lien  was  in  force 
from  that  day,  and  the  judgments  which  were  confessed  subse- 
quently, viz.,  on  the  7th  of  March,  must  hold  the  land  subject 
to  U.  The  sales  which  were  made  were  subject  to  all  prior  en- 
oumbrances;  these  actions  were  such,  and  the  purchasers  were 
fully  informed  of  their  existence,  and  could  not,  therefore,  com- 
plain. 

When  these  executions  came  into  the  hands  of  the  sheriff  he 
advertised,  and  he  ought  to  have  sold  such  right  as  there  re- 
mained to  the  defendant,  after  the  previous  sales,  and  which  had 
been  bound  by  these  actions.  For  not  proceeding  to  sell  he  is 
subject  to  amercement. 

*But,  in  another  respect,  this  motion  ought  to  be  sustained. 
The  law  made  these  actions  a  lien  on  the  land.  The  defendant 
could  not  sell  until  it  was  satisfied.  But  the  confession  of  judg- 
ment to  Shot  well  and  to  Jacobs  and  Shotwell  was,  in  a  liberal 
view  of  the  law,  and  within  its  object,  a  sale.  It,  in  effect,  con- 
veyed the  title  out  of  the  defendant.  It  was  therefore  void,  and 
so  were  all  the  proceedings  under  it,  and  the  proceeds  of  the  sale 
ought  to  have  been  devoted  to  these  executions.  Jacobs  and 
Shotwell  had  no  claim  to  them.  The  legislature  intended  to 
give  a  full  remedy  against  corporations ;  to  secure  their  property 
from  the  commencement  of  the  suit.  And  the  judgments  to 
Shotwell  and  to  Jacobs  and  Shotwell  must  be  viewed  in  the  light 
of  a  sale  made  where  there  was  a  previous  lien.  Such  sale  is 
good  as  between  the  parties,  but  the  thing  sold  is  subject  to  the 
lien.  These  executions  ought,  therefore,  to  have  preference,  and 
he  cited  8  Perm.  734. 

Hornblower,  for  the  sheriff. 

1 .  The  construction  contended  for  by  the  plaintiff  would  in- 
volve creditors  of  corporations  in  greater  difficulties  instead  of 
relieving  them.  If  every  action  commenced  before  an  actual 
sale  under  execution  was  a  lien  in  the  sense  contended  for,  the 
property  could  never  be  sold  until  judgment  was  entered  in  every 
action,  or,  if  sold,  would  inevitably  be  sacrificed,  as  no  persons 

*436 


512  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Stansbury  v.  Patent  Cloth  Manufacturing  Co. 

could  purchase  with  safety  subject  to  the  contingent  result  of 
pending  actions.  For  example,  in  the  present  instance  the  pur- 
chaser, Weston,  had  he  been  advised  that  the  premises  were 
liable  to  be  resold  on  the  judgments  thereafter  to  be  entered  in 
the  various  actions  then  pending  against  the  corporation,  some 
of  which  are  yet  undetermined,  instead  of  bidding  enough  to  pay 
the  judgment  creditors,  at  whose  suit  the  property  was  sold, 
could  not  with  any  safety  have  given  more  than  a  nominal  price, 
or  rather  could  not  have  purchased  at  all,  not  knowing  how 
much  the  premises  would  cost  in  the  end.  Thus  the  first  judg- 
ment creditor,  whether  his  judgment  should  be  obtained  by  con- 
fession or  by  the  ordinary  course  of  the  court,  would  be  in  a 
worse  situation  than  the  last,  for  he  would  have  less  chance  of 
raising  his  demand  out  of  the  property.  Besides,  the  commence- 
ment of  an  action,  under  the  statute,  after  judgment  entered  in  a 
former  suit,  but  before  a  sale  by  execution,  would  be  as  much  of 
a  lien  *as  an  action  instituted  before  a  judgment,  consequently, 
if  the  judgment  creditor  should  be  obliged  to  wait  until  every 
plaintiff  had  perfected  his  judgment,  he  might  be  delayed  in- 
definitely. On  the  other  hand,  if  he  proceeded  to  a  sale,  he 
must  encounter  all  the  hazard  of  selling  subject  to  contingent 
and  uncertain  encumbrance,  and  generally  a  complete  sacrifice  of 
the  property  would  be  the  result.  But  the  counsel,  aware  of 
this  absurdity,  has  attempted  to  assimilate  a  confession  of  judg- 
ment by  the  defendants  to  a  grant,  sale  or  conveyance  by  them. 

It  might  be  answered  that  a  purchaser  at  sheriff's  sale  is  not 
bound  to  inquire  into  the  regularity  of  the  judgment,  and  it  does 
not  appear,  in  the  case  stated,  that  either  Coxe,  the  immediate 
purchaser,  or  Weston,  his  vendee,  knew  that  the  judgments  were 
by  confession.  But — 

2.  A  confession  of  judgment  is  in  no  sense  a  grant  or  convey- 
ance of  lands,  though  a  sale  takes  place  under  it.  It  might  as 
well  be  said  that  a  warrant  of  attorney  to  confess  judgment  is  a 
bill  of  sale  for  a  horse,  because  judgment  may  be  entered  there- 
on, execution  issue  and  the  horse  be  sold  under  it.  It  is  no  an- 
swer to  say  that  the  intent  of  the  legislature  may  be  defeated  if 
corporations  may  confess  judgments  and  thus  effect  a  sale  of  their 

*437 


2  SOUTH.]  FEBRUARY  TERM,  1819.  :>13 

Staiisbnry  r.  Patent  Clot'.i  Manufactnriug  Co. 

real  estate.  If  such  was  their  intent  they  have  failed  to  express 
it.  If  corporations  confess  judgments  fraudulently,  the  proceed- 
ings would  be  void  without  the  aid  of  this  statute.  The  ques- 
tion then  occurs,  Did  the  legislature  mean  to  say  that  corporations 
should  not  confess  judgments  to  their  honest  creditors  for  debts 
bonafide  due  to  the.m  ?  Did  they  mean  to  say  that  corporations, 
in  such  cases,  should  always  stand  it  out  and  subject  their  credi- 
tors to  the  delays  of  a  lawsuit,  and  themselves  to  a  bill  of  costs  ? 

3.  The  act  prohibits  "  a  grant,  sale,  alienation  or  conveyance  " 
after  the  order  for  appearance  entered,  and  it  meant  to  do  no 
more.  It  was  to  prevent  the  corporation,  after  suit  brought, 
from  turning  their  real  estate  into  money  and  thus  withdrawing 
it  from  the  reach  of  honest  creditors.  The  action  becomes  a  lien 
upon  the  property  as  between  the  plaintiff  and  defendants,  leav- 
ing other  creditors  to  pursue  their  legal  remedies.  It  would  be 
extremely  unreasonable  that  the  action  first  commenced,  how- 
ever tardily  prosecuted,  however  litigated,  and  however  uncertain 
its  event,  should  keep  at  bay  other  creditors  whose  claims  are 
indisputable. 

*The  case  of  an  attachment  against  an  absconding  debtor,  cited 
from  2  Perm.  Rep.  734,  is  wholly  inapplicable.  There  the  prop- 
erty attached  is  in  the  custody  of  the  law,  for  the  benefit  of  all 
applying  creditors,  pro  rota.  No  priority  or  preference  is  given 
to  the  plaintiff  or  any  other  creditor.  The  law  in  that  case  looks 
forward  to  and  makes  provision  for  the  consummation  of  the 
whole  proceeding,  in  a  limited  time.  • 

It  is  true  the  plaintiff  had  a  lien  upon  this  property ;  but  a 
lien  subject  to  be  defeated  by  operation  of  law. 

Lands  in  New  Jersey  are  bound  in  the  hands  of  the  heir,  after 
process  served  or  suit  instituted "  against  him  on  the  contract  of 
his  ancestor ;  so  far,  I  apprehend,  as  that  a  sale  made  by  him 
after  action  commenced,  would  not  protect  the  purchaser.  Yet, 
if  two  or  more  suits  were  brought  against  an  heir,  a  sale  niuK-r 
the  judgment  first  obtained,  though  in  the  action  last  commenced, 
would  be  effectual. 

So  the  act  authorizing  a  sale  of  the  testator's  or  intestate's  lands 
by  decree  of  the  orphans  court,  says  the  deed  shall  convey  all  the 
*438  33 


514  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Stansbury  v.  Patent  Cloth  Manufacturing  Co. 

estate  &c.  which  the  heir-at-law  had  at  the  time  the  decree  for 
sale  was  made.  This  decree  becomes  a  lien  as  against  the  heir  so 
as  to  prevent  his  conveying.  Yet,  if  execution  comes  on  judg- 
ment against  the  heir,  a  sale  under  it  subsequent  to  the  decree 
would  be  effectual. 

Lastly.  It  has  been  intimated  by  the  counsel  that  the  sheriff 
was  bound  to  go  on  and  sell ;  that  he  had  no  right  to  decide  &c. 
The  sheriff  knew,  as  the  case  states,  that  he  had  already  sold 
all  the  defendant's  property  and  estate.  But  the  sheriff's  con- 
duct is  praiseworthy.  He  suspended  his  proceedings  to  give  the 
parties  an  opportunity  of  getting  the  opinion  of  this  court,  and 
if  the  court  are  of  opinion  that  nothing  remained  to  be  sold  on 
plaintiff's  execution,  they  will  justify  the  sheriff,  and  refuse  the 
plaintiff's  motion. 

Attorney- General,  on  the  same  side,  remarked  that  the  act 
had  been  passed  for  the  relief  of  creditors,  not  to  embarrass  and 
defraud,  and  the  construction  contended  for  would  produce  this 
result.  The  proper  mode  to  arrive  at  the  true  intent  and  construc- 
tion of  the  law  was  to  inquire  what  was  the  evil  which  was 
complained  of,  and  what  the  remedy.  The  evil  here  was  the 
conversion  of  the  property  of  corporations  and  its  removal  out 
*of  the  state,  or  beyond  the  process  of  the  court.  The  object  was 
to  prevent  corporations  from  doing  this.  All,  therefore,  that  the 
legislature  had  to  do  was  to  bind  the  property,  so  that  it  should 
be  subject  to  the  claim  of  the  creditor  when  that  claim  should  be 
finally  decided.  ^This  was  done  by  making  the  action  a  lien  for 
this  purpose,  and  no  other,  so  that  the  debtor  could  not  sell  it. 
It  never  was  designed  to  be  carried  so  far  as  to  give  one  creditor 
a  preference  over  another.  . 

Scudder,  in  reply,  supported  the  positions  laid  down  in  open- 
ing the  case. 

The  motion  was  argued  at  November  term,  1817.  The  opin- 
ion of  the  court  was  pronounced  by  the  chief-justice. 

KlRKPATKICK,  C.  J. 

This  is  a  motion  to  amerce  the  sheriff  of  the  county  of  Essex 

*439 


2  SOUTH.]  FEBRUARY  TERM,  1819.  515 

Stansbury  v.  Patent  Cloth  Manufacturing  Co. 

in  these  three  actions,  upon  a  case  stated  and  submitted  to  the 
•consideration  of  the  court.  The  motion  rests  wholly  upon  the 
•"  act  for  the  relief  of  creditors  against  corporations,"  passed  the 
51st  of  January,  1817. 

The  act  directs  "  that  the  first  process  to  be  used  against  cor- 
porations shall  be  a  summons ;  that  if  such  summons  shall  be 
returned  not  summoned  or  not  served,  the  court  shall  make  an 
order  directing  the  defendant  to  appear  <fec. ;  and  that  after  the 
•entry  of  such  order,  it  shall  not  be  lawful  for  such  corporation  to 
grant,  bargain,  sell,  alien  or  convey  their  lands,  or  any  part  there- 
of, until  the  plaintiff  be  satisfied  his  lawful  demand ;  that  the 
said  action  shall  be  a  lien  upon  such  lands  from  the  time  of  such 
•entry,  and  that  the  same  may  be  sold  on  execution,  in  the  same 
manner  as  if  no  conveyance  thereof  had  been  made  by  such  cor- 
poration. 

Here  these  plaintiffs,  in  the  term  of  February,  1817,  entered 
their  respective  rules  upon  the  corporation  to  appear,  and  an  ap- 
pearance being  entered  for  them,  they  so  proceeded  as  to  enter 
judgment  in  November  term,  1817,  and  to  sue  out  executions 
*ind  deliver  the  same  to  the  sheriff  on  the  18th  of  the  same 
month,  returnable  to  February  term  following.  The  sheriff 
levied  the  said  executions  on  the  lands  of  the  said  corporation, 
on  the  same  day,  and  immediately  thereafter  advertised  the  same 
for  sale  by  virtue  of  the  said  execution,  and  after  adjourning  the 
said  sale  thereof  several  times,  now  absolutely  refuses  to  sell  at 
all. 

*While  the  plaintiffs  were  thus  proceeding  in  their  suits,  to 
wit,  on  the  7th  of  March,  1817,  the  said  corporation  confessed 
one  judgment  to  Joseph  Shotwell  and  another  to  John  Jacobs 
and  Joseph  Shotwell  for  large  sums  of  money,  upon  which  exe- 
cutions were  sued  out  and  put  into  the  hands  of  the  same  sheriff 
on  the  8th  of  March,  1817,  by  virtue  of  which  he  sold  the  said 
lands  of  the  said  corporation  on  the  3d  of  October  following, 
subject  to  prior  encumbrances,  of  which  encumbrances  and  par- 
ticularly of  this  action,  and  of  the  entry  of  those  orders,  the 
purchaser  had  notice.  After  the  term  of  February  and  before 
the  term  of  November,  1817,  sundry  judgments  were  entered  by 

*440 


516  NEW  JERSEY  SUPREME  COURT.      [5  L.vw 

Stansbury  v.  Patent  Cloth  Manufacturing  Co. 

default  under  this  act  against  the  said  corporation  in  the  court 
of  common  pleas  of  the  county  of  Essex,  and  executions  there- 
upon issued,  which  said  judgments  and  executions,  as  well  as 
those  of  the  Shotwells,  were  preferred  by  the  sheriff  to  the  judg- 
ments and  executions  of  those  plaintiffs,  and  paid  out  of  the 
proceeds  of  the  said  sale. 

Upon  this  case,  the  counsel  for  the  plaintiffs  have  stated  cer- 
tain questions  about  the  priority  of  their  lien  and  their  judg- 
ments to  those  of  the  Shotwells  entered  by  confession,  and  those 
in  the  common  pleas  entered  by  default,  but  the  real  question  is,, 
whether  the  sheriff,  upon  the  whole  case,  is  liable  to  an  amerce- 
ment. 

I  state  the  question  in  this  form  because,  though  I  am  not 
willing  to  say  that  these  judgments  ought  to  be  preferred  to 
those,  or,  indeed  ought,  at  all,  to  be  paid  out  of  the  avails  of  the- 
sale,  yet  I  think  the  sheriff  ought  to  be  amerced.  For — 

1.  The  confession  of  judgment  and  a  sale  by  the  sheriff,  in 
pursuance  of  that  judgment,  is  in  the  strictest  sense  an  aliena- 
tion by  the  corporation,  and,  therefore,  as  against  these  plaintiffs, 
is  inoperative  and  leaves  the  land  liable  to  be  sold  upon  their 
executions  in  the  same  manner  as  if  no  such  conveyance  had 
ever  been  made.  I  say  it  is  in  the  strictest  sense  an  alienation! 
by  the  corporation,  for  it  is  wholly  immaterial  whether  one  actu- 
ally make  the  conveyance  himself  or  constitute  an  agent  or 
trustee  to  make  it  for  him,  or,  in  order  to  render  the  transaction 
still  more  solemn,  go  into  a  court  of  justice,  and  by  certain  forms 
of  proceeding  procure  it  to  be  made  by  the  officer  of  the  law ; 
still  it  is  his  own  act.  But  if  it  be  possible  that  I  should  be 
mistaken  in  this,  yet  I  think,  notwithstanding,  the  sheriff  must 
be  amerced.  For — 

*2.  Even  if  these  judgments  had  been  entered  against  the 
corporation  in  invitum,  and  executions  had  been  issued  thereupon 
and  the  land  sold,  as  well  it  might,  yet  these  orders  entered  by 
the  plaintiffs  gave  them  a  lien  upon  it  for  their  debts  and  sub- 
jected it  to  their  executions,  as  well  in  the  hands  of  such  pur- 
chaser as  the  corporation  itself. 

For  what  is  a  lien  ?  what  is  its  nature  and  operation  ?  It  is  a 

*441 


2  SOUTH.]          FEBRUARY  TERM,  1819.  517 

Stansbury  r.  Patent.  Cloth  Manufacturing  Co. 

French  word,  and  originally  signifies  a  string,  tie,  or  l>and,  and 
in  the  metaphorical  sense  in  which  the  law  uses  it,  it  signifies 
such  hold  or  claim  upon  a  thing  for  the  satisfaction  of  a  debt, 
•duty  or  demand,  as  that  it  cannot  be  taken  away  until  the  same 
be  satisfied  and  paid.  It  is  in  this  sense  properly  applicable, 
and  I  believe  originally,  in  our  books,  only  applied  to  chattels, 
things  movable  and  easily  passing  from  hand  to  hand  ;  and  with 
respect  to  these,  this  claim  which  one  has  upon  them  is  meta- 
phorically called  a  lien,  a  string,  which  binds  them  fast  and  holds 
them  in  his  possession.  In  most  instances  in  which  one  has  such 
lien,  if  the  debt  or  duty  be  not  paid  upon  reasonable  request  and 
within  reasonable  time,  the  party  himself  may  sell  the  chattel 
so  held,  without  the  intervention  of  any  judicatory,  as  in  the  case 
of  pledges  &c. ;  but  in  this  case  the  act  in  expressly  making  the 
land  liable  to  the  plaintiffs'  execution,  impliedly  directs  that  it 
shall  be  sold  in  that  way,  and  in  no  other;  and  this,  too,  is 
more  analogous  to  the  common  course  of  this  country  in  selling 
lands  for  the  payment  of  debts.  In  this  hypothecated  state,  then, 
or  rather  in  this  condition  of  being  tied  fast  by  this  lien  in  the 
hands  of  the  plaintiffs  for  the  payment  of  their  debts,  this  land 
•was  a  proper  subject  to  be  taken  in  execution  and  sold  for  that 
purpose. 

It  seems  to  me  that  some  confusion  has  arisen  in  this  case, 
from  comparing  this  lien  to  a  judgment.  A  judgment  binds  the 
land  from  the  time  of  the  entry,  and  it  is  in  the  nature  of  a 
lien  upon  it  in  the  hands  of  the  plaintiff  for  the  payment  of  his 
•debt ;  and  yet  if  there  be  two  or  more  consecutive  judgments,  and 
the  land  be  sold  upon  the  last,  it  cannot  again  be  taken  in  execu- 
tion and  sold  upon  those  that  preceded,  or  any  of  them;  if  they 
are  to  be  satisfied  at  all,  they  must  be  satisfied  out  of  the  surplus 
of  the  moneys  arising  upon  such  sale,  and  the  land  goes  quit  in 
the  hands  of  the  purchaser.  But  then  it  is  to  be  remembered 
that  this  is  a  special  provision,  created  by  statute,  in  case  of 
judgments  *only,  and  not  according  to  the  course  of  the  common 
law,  in  the  case  of  liens  generally.  For,  considering  the  judg- 
ment as  a  lien  upon  the  land  from  the  entry,  if  it  were  left  as  at 
common  law,  the  sale  upon  the  la«t  judgment  would  not  preclude 

*442 


518  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Stansbury  v.  Patent  Cloth  Manufacturing  Co. 

another  sale  upon  the  preceding.  In  this  case  there  is  no  such 
special  provision ;  nay,  indeed  it  is,  on  the  contrary,  expressly- 
directed  that  the  land  shall  be  sold  to  satisfy  the  lien,  any  other 
conveyance  to  the  contrary  notwithstanding. 

For  his  refusal  to  proceed  upon  these  executions,  and  to  sell 
this  land,  therefore,  for  the  benefit  of  the  plaintiff,  the  sheriff 
must  be  amerced  in  the  sum  settled  and  agreed  upon  by  the- 
parties. 

SOUTHARD,  J. 

The  case  presented  upon  this  motion  shows  that  the  sheriff  has 
performed  his  duty  strictly,  so  far  as  relates  to  the  levy  upon  and 
subsequent  sale  of  the  property  of  the  defendant.  It  further 
shows  that  he  has  not  improperly  retained  any  part  of  the  money> 
but  has  paid  the  whole  to  persons  claiming  it  under  the  execu- 
tions in  his  hands,  according  to  the  dates  of  the  judgments  and 
executions ;  paying  those  first  which  were  first  obtained  and  is- 
sued. This,  in  ordinary  cases,  would  have  been  correct,  and  what 
the  law  required  him  to  do.  It  is  supposed,  however,  that  these 
judgments  and  executions  upon  which  the  motion  to  amerce  is 
made,  were  entitled  to  priority,  notwithstanding  they  were  the 
last ;  and  this  right  to  priority  is  supposed  to  arise  from  the  facts  ; 
that  in  these  actions  an  order  for  the  appearance  of  the  defend- 
ant was  made  under  the  third  section  of  the  "  act  for  the  relief 
of  creditors  against  corporations,"  passed  January  31st,  1817 ;. 
that  this  order  was  made  before  any  other  orders  or  judgments- 
were  entered,  and  thus  the  actions  became  a  lien  which  must  first 
be  satisfied.  The  motion,  therefore,  will  rest  on  the  construction 
of  this  third  section,  and  terminates  in  the  inquiry,  What  kind 
of  lien  is  created  by  the  entry  of  this  order  ?  Is  it  such  a  pure, 
unqualified  lien  as  will  hold  the  property  against  every  claim  of 
every  kind,  and  give  the  plaintiff  a  preference  to  other  judgment 
creditors  ?  I  cannot  view  it  in  this  light.  Let  us  look  at  it.. 
The  first  section  of  this  law  directs  the  mode  in  which  process 
shall  be  served  on  corporations.  The  second  section  determines 
the  effect  of  such  service.  The  third  section  directs  the  court  to 
enter  an  order  for  *the  appearance  of  the  defendant  where  the 

*443 


2  SOUTH.]  FEBRUARY  TERM,  1819.  519 

Stansbury  r.  Patent  Cloth  Manufacturing  Co. 

sheriff  cannot  serve  the  summons.  The  fourth  section,  which 
governs  this,  case  enacts :  "  That  it  shall  not  be  lawful  for  any 
corporation  against  whom  any  such  order  shall  be  made,  after 
the  entry  of  such  order  in  the  minutes  of  the  court,  to  grant,  bar- 
yam,  sell,  alien  or  convey  any  lands,  tenements  or  real  estate  &c. 
of  which  such  corporation  shall  be  seized  or  entitled  to  at  the 
time  of  making  such  order,  until  the  plaintiff  in  the  action  *hall 
be  satisfied  his  legal  demand,  or  until  judgment  shall  be  entered 
for  defendant,  and  the  said  action  shall  be  and  remain  a  lien  on 
such  lands,  tenements  and  real  estate  from  the  time  of  entering 
the  said  order  for  publication  in  the  minutes  of  the  court ;  and 
the  said  lands,  tenements  and  real  estate  shall  and  may  be  sold 
on  execution,  as  if  no  conveyance  had  been  made  by  the  said 
corporation. 

It  has  been  supposed  that  there  are  two  leading  ideas  i»  this 
section.  First,  that  the  corporation  shall  not  grant,  bargain, 
sell,  alien  or  convey  after  the  order  is  made.  And  second,  that 
after  this  order  the  action  becomes  a  lien  on  the  land,  which  fol- 
lows it  everywhere. 

The  first  of  these  propositions  is  unquestionably  true.  After 
the  order  for  publication  is  made,  the  defendant  has  no  longer 
the  power  to  sell  or  transfer  his  estate  until  the  determination  of 
the  cause.  He  cannot  sell  or  convey  it  away.  It  must  remain 
subject  to  the  just  and  legal  demands  of  creditors.  But  I  do 
not  perceive  that  this  will  at  all  avail  the  plaintiff  upon  this 
motion.  It  has  indeed  been  argued  that  a  confession  of  judg- 
ment was  in  effect  a  conveyance  of  the  land,  as  it  occasioned  its 
transfer.  But  this  argument  seems  to  me  to  confound  definitions 
and  distinctions  of  words.  It  might  as  well  be  said  that  a  con- 
fession of  judgment  was  a  sale  of  personal  goods  and  chattels 
because  they  were  sold  under  the  execution.  The  statute  take> 
away  from  the  party  a  portion  of  the  ordinary  right  over  and 
use  of  his  property,  and  ought  not  to  be  extended  beyond  the 
usual  meaning  of  the  terms.  He  may  not  sell  or  convey,  but  he 
may  confess  judgment.  A  judgment  may  be  entered  again.--t 
him  ;  but  the  action  is  to  be  a  lien  on  the  lands ;  and  they  may 
be  sold  under  the  execution  as  if  no  conveyance  had  been  made ; 


520  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Stansbury  v.  Patent  Cloth  Manufacturing  Co. 

and  it  is  argued  that  this  lien  is  unqualified  and  must  first  of  all 
be  satisfied.  I  apprehend  that  an  error  on  this  part  of  the  sub- 
ject arises  from  giving  to  the  word  lien  a  force  which  it  was 
never  intended  to  possess.  What  *was  the  evil  which  the  legis- 
lature intended  to  remedy  by  this  law?  Before  its  passage 
various  companies,  designed  to  effect  a  great  variety  of  objects, 
had  sprung  up  in  the  state  with  mushroom  growth  and  were  in- 
corporated. In  some  cases  not  one  member  of  the  corporation 
resided  in  the  state,  and  when  it  became  necessary  to  sue  them 
there  was  nobody  upon  whom  process  could  be  served ;  and  by 
a  sale  of  the  estate  which  they  held,  they  altogether  eluded  the 
payment  of  their  debts.  It  was  an  evil  worthy  of  legislative 
interference ;  and  this  act  was  passed  as  well  to  provide  a  mode 
in  which  process  should  be  served,  as  to  retain  the  property  in 
such  way  as  to  make  it  answerable  to  the  just  demands  against 
the  corporation.  This  last  was  the  sole  and  exclusive  object  of 
the  fourth  section.  It  was  for  this  purpose,  and  this  only,  that 
the  action  was  made  a  lien  on  the  land.  It  was  to  be  an  effectual 
lien  between  the  corporation  and  the  creditors ;  so  that  the  one 
could  not  part  with  it  to  the  injury  and  defrauding  of  the  other. 
But  it  never  was  designed  to  give  a  preference  to  one  creditor 
over  another,  and  by  the  mere  entry  of  an  order  on  the  minutes 
of  a  court  in  favor  of  one  to  prevent  another  from  obtaining 
that  priority  which  the  regular  prosecution  and  speedy  termina- 
tion of  his  suit  would  give  him.  The  sole  object  was  to  keep 
the  property  unchanged  within  the  process  of  the  court.  This 
is  manifect,  too,  not  only  from  the  reason  and  object  of  the  law, 
but  from  its  very  words.  It  does  not  say  that  the  action  shall 
be  a  lien  and  there  stop ;  it  adds  that  the  lands  may  be  sold  on 
execution  as  if  no  conveyance  had  been  made.  On  what  execu- 
tion may  it  be  sold  ?  Not  alone  on  the  execution  in  favor  of  the 
creditor  who  obtained  the  order,  but  on  any  execution  in  favor 
of  any  creditor.  After  this  order  is  entered,  if  the  corporation 
sell  the  land,  it  shall  nevertheless  be  subject  to  the  claims  of 
judgment  creditors  so  long  as  that  action  is  depending. 

A  different  construction  of  the  statute  would  lead  to  conse- 
quences the  most  serious  and  unjust.     There  is  in  it  no  provision 

*444 


2  SOUTH.]  FEBRUARY  TERM,  1819.  521 

Stansbury  r.  Patent  Cloth  Manufacturing  Co. 

to  compel  the  plaintiff  who  has  obtained  the  order  to  progress 
with  and  terminate  his  suit.  He  can  suspend  it,  and  if  it  be  an 
unqualified  lien  no  judgment  creditor  can  have  the  land  sold, 
except  subject  to  his  uncertain  claim,  which  may  swallow  up  the 
whole.  If  this  be  so,  all  that  a  corporation  has  to  do  when  it  is 
in  difficulty  is  to  induce  a  friend  to  commence  a  suit,  get  his 
*order,  let  the  cause  delay  and  laugh  at  honest  creditors.  But 
again — a  claim  which  has  regularly  progressed  until  within  an 
hour  of  judgment  may,  by  this  construction,  be  postponed  to  one 
which  has  only  just  been  put  in  suit. 

Nor  does  the  evil  rest  here.  If  the  doctrine  contended  for 
be  true,  the  lands  of  a  corporation  must  be  sold  subject  to  as 
many  liens  of  this  kind  as  either  friendship  or  fraud  may  have 
been  induced  to  create  ;  and  who  could  purchase  under  the  un- 
certainty of  their  extent  ?  A  finer  device  to  make  property  sell 
for  nothing  and  cheat  creditors  could  not  have  been  contrived  by 
legislative  ingenuity.  Such  a  construction  of  the  law  never  can 
be  given. 

In  this  case  I  am  of  opinion  that  the  law  effected  its  object  by 
keeping  this  property  within  the  process  of  the  court  and  the 
reach  of  creditors ;  that  the  sheriff  has  done  right  in  paying 
the  money  arising  from  it,  upon,  the  judgments  and  executions, 
according  to  their  dates,  and  that  the  motion  for  amercement 
ought  not  to  prevail. 

Judgment  of  amercement  entered. 
*445 


522  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


State  v.  Cheeseman. 


THE  STATE  v.  PETER  T.  CHEESEMAN. 

Habeas  corpus  not  the  proper  mode  for  guardian  to  obtain  the  custody  of  his 
ward  where  the  ward  was  under  fourteen  and  chose  to  remain  with  his- 
mother,  (a) 

This  was  a  writ  of  habeas  corpus,  directed  to  the  defendant, 
commanding  him  "  that  the  body  of  Joel  Clark,  a  minor  under 
the  age  of  twenty-one  years,  in  his  custody  &c.,  he  have  before 
the  justices  &c.,  to  undergo  and  receive  what  the  said  justices 
should  consider  of  and  concerning  him  in  that  behalf."  To  this 
writ  the  defendant  returned  that  he  had  the  body  of  said  Clark, 
who  was  a  boy  about  thirteen  years  and  four  months  old,  the 
only  son  of  Joel  Clark,  late  of  the  county  of  Gloucester,  de- 
ceased, who  died  in  January,  1807,  intestate,  leaving  his  widow, 
the  mother  of  the  boy ;  that  the  defendant  married  the  said 
widow  in  December,  1808  ;  that  the  boy  had  lived  with  the  de- 
fendant, under  the  care  of  his  mother,  ever  since  their  marriage, 
and  had  always  expressed  his  wish  to  remain  with  his  mother 
and  had  never  been  detained  contrary  to  his  own  will. 

Upon  this  return  the  matter  was  heard,  and  it  appeared  that 
the  prosecutors  had  been  appointed  by  the  orphans  court  of 
*Gloucester  county,  guardians  of  said  boy,  and  letters  of  guardian- 
ship in  the  usual  form,  in  which  they  are  given  by  surrogates  to 
guardians,  were  presented  to  the  court.  It  was  also  admitted 
that  a  demand  had  been  made  by  the  guardians  to  have  the  boy 
delivered  to  them  about  two  years  ago,  and  that  the  defendant 
replied,  "  take  him,  but  I'll  make  you  bring  him  back  faster  than 
you  take  him  away." 

(a)  See  Mayne  v.  Baldwin,  1  Hal.  Ch.  454 ;  Valentine  v.  Valentine,  4  Hal. 
Oh.  IS  19  ;  Sennet  v.  Sennet,  2  Seas.  114;  State,  Saird  v.  Torrey,  S  C.  E.  Or. 
194,  modified  on  appeal,  6  C.  E.  Or.  384;  State  v.  Clover,  1  Harr.  419;  State 
v.  Stigall,  2  Zab.  286;  Magee  v.  Holland,  S  Dutch.  99.  What  custody  of  ward 
testamentary  guardian  is  entitled  to,  Matter  of  Van  Houten,  2  Or.  Ch.  220  ; 
Van  Dorvn  v.  Everitt,  post  4&2  ;  and  see  Graham  v.  Houghlalin,  1  Vr.  553  ;  Al- 
bert v.  Perry,  1  McCart.  540. 

*446 


2  SOUTH.]  FEBRUARY  TERM,  1819.  523 


State  v.  Cheeseman. 


Ewing  and  M'llvaine,  for  the  guardiaas,  insisted  that  in  New 
Jersey,  under  the  age  of  fourteen  years,  the  child  is  considered 
as  having  no  discretion  to  choose  his  guardian  or  place  of  resi- 
dence, and,  therefore,  that  the  court  ought  to  give  him  to  the 
person  in  whose  hands  the  law  has  placed  him.  That  the  stat- 
ute and  the  forms  of  letters  of  guardianship  direct  that  the 
guardian  is  entitled  to  the  custody  of  the  person  of  the  minor, 
and  that  the  court  would  deliver  the  child  to  the  guardian  even 
against  the  will  of  the  child.  8  Mod.  214- ;  8  Burr.  1436. 
That  this  was  the  only  mode  by  which  the  guardian  could  ob- 
tain the  child,  as  this  court  was  the  only  power  that  would  in- 
terfere in  the  case. 

Griffith,  for  defendant,  alleged — 1.  That  the  guardians  had 
taken  no  care  or  notice  of  the  child  since  it  was  five  years  old, 
but  it  had,  since  that  time,  been  kept  and  educated  by  the  mother, 
and  she  ought  still  to  retain  it.  The  true  rule  to  be  found  in  the 
books  was  that  the  court  should  exercise  its  discretion  and  ad- 
judge whether,  under  all  the  circumstances,  it  was  proper  to  de- 
liver over  the  child.  2.  That  the  letters  of  guardianship  had 
been  improperly  issued  and  were  void,  because  they  ought  to 
have  been  given  to  the  mother. 

The  opinion  of  the  court  was  expressed  by  Southard,  J. 

• 

SOUTHARD,  J. 

I  consider  this  question  of  very  considerable  importance  under 
the  laws  of  this  state,  and  one  which  in  its  decision  must  have 
extensive  and  powerful  operation  upon  the  interests  of  society. 
If  this  be  the  proper  mode  of  settling  the  question  of  right  to 
the  possession  of  the  person  of  an  infant  who  is  under  guardian- 
ship, there  will  be  a  very  ready  and  easy  mode  of  settling  those 
disputes  which  now  exist,  and  thousands  more  will  be  created  by 
the  very  means  which  are  established  for  determining  them. 
Nevertheless,  if  the  law  require  a  decision  in  *favor  of  tin-si- 
guardians  we  must  meet  the  consequences  and  establish  the  pre- 
cedent. 

*447 


524  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


State  v.  Cheeseman. 


The  first  inquiry  which  presses  itself  upon  my  mind  is  the 
right  of  these  guardians  to  the  person  of  the  child.  And  this  I 
consider  complete  and  perfect ;  such  a  right  as  they  would  be 
justified  in  enforcing,  and  if  resisted,  he  who  should  oppose  them 
would  lay  himself  liable  to  severe  chastisement.  The  nature  of 
the  guardianship  created  by  our  statute — nay,  the  very  relation  of 
guardian  and  ward — gives  the  right.  The  principles  applicable 
to  this  subject,  before  the  enaction  of  our  statute,  and  the  words 
of  that  statute,  place  the  guardian  in  loco  parentis,  and  as  the 
father  is  entitled  to  the  possession  of  the  person  of  his  child,  so 
is  the  guardian  to  that  of  his  ward.  It  is  also  manifest  to  my 
mind  that  no  difficulty,  in  this  case,  results  from  the  mode  of 
proving  the  guardianship.  The  orphans  court,  which  granted 
the  letters  which  we  have  before  us,  is  expressly  authorized  by 
the  statute  to  grant  letters  of  guardianship.  It  is  expressly 
vested  with  the  power  to  determine  in  what  cases  and  to  whom 
the  guardianship  shall  be  entrusted,  and  being  a  court  which  has 
authority,  and  having  exercised  that  authority,  we  are  bound  to 
regard  it  as  properly  exercised  unless  when  the  exercise  of  the 
power  is  fairly  brought  up  and  contested,  (a)  Nay,  further,  this 
court  has  no  right  to  say  that  the  guardianship  was  improperly 
given  to  these  men.  The  appeal  from  the  decision  of  the  or- 
phans court  is  to  a  different  tribunal.  (6) 

It  is  not,  then,  either  from  the  right  of  a  guardian  to  the  per- 
son of  his  ward,  or  from  any  doubt  that  these  applicants  really 
are  the  guardians  and  are  so  to  be  considered,  that  any  difficulty 
results  in  the  present  case.  But  it  is  from  the  doubt  whether  the 
writ  of  habeas  corpus  be  the  proper  mode  of  contesting  the  rights 
of  these  parties  under  facts  like  these.  What  is  this  writ  of 
habeas  corpus  ?  The  writ  used,  in  this  case,  is  the  great  and 
efficacious  writ,  ad  subjiciendum,  which  is  directed  to  a  person 
detaining  another,  and  commanding  him  to  produce  the  prisoner 
with  the  day  &c.  3  Bl  Com.  131;  8  St.  Trials  11$.  It  is 
called  a  high  prerogative  writ,  and  issuing  by  common  law,  and 

(a)  Eldridge  v.  Lippencott,  Coxe  397 ;  Den,  Vanderveere  v.  Oaston,  1  Dutch. 
€15;  Acts  of  1871  p.  102. 

(b)  But  see  Tenbrook  v.  McColm,  5  Hal.  SS8 ;  S.  C.,  7  Hal.  97. 


2  SOUTH.]  FEBRUARY  TERM,  1819.  525 


State  »  Cheeseman. 


running  throughout  the  kingdom,  because  the  king  is  entitled  at 
all  times  to  have  an  account  why  the  liberty  of  his  subject  is  re- 
strained. Qro.  Jac.  543.  It  is  for  the  relief  of  the  prisoner, 
and  the  prisoner  only.  It  is  to  inquire  why  the  liberty  of  the 
citizen  *is  restrained.  This,  then,  is  its  legitimate  and  only  ob- 
ject— to  relieve  from  restraint  and  imprisonment.  Wherever 
there  is  no  imprisonment  there  is  no  ground  for  the  writ  of  habeas 
corpus.  And  I  apprehend  no  case  has  been  cited,  nor  can  any 
one  be  cited,  where  this  writ  is  either  used  to  determine  a  ques- 
tion of  property  or  the  conflicting  rights  to  the  possession  of  the 
person ;  it  looks  to  another  object  altogether.  If  one  of  two  par- 
ties unlawfully  restrain  and  imprison  the  person  about  whom  the 
contest  arises,  the  writ  steps  in  and  relieves  from  the  restraint, 
but  leaves  the  contest,  as  to  possession,  to  be  decided  in  another 
mode.  This  principle  is  amply  maintained  in  the  case  of  Rex 
v.  Smith,  2  Str.  982.  And  if  we  were  permitted  to  pursue  the 
history  of  judicial  proceedings  in  England  to  a  later  period,  the 
cases  of  The  King  v.  Reynolds,  6  T.  JR.  4^7  and  Rex  v.  Edwards, 
7  T.  R.  745,  would  abundantly  confirm  the  doctrine  there  ad- 
vanced. In  the  first-mentioned  case  the  court  expressly  refused 
to  decide  upon  the  claim  of  possession  to  the  guardianship,  but 
said  it  could  only  deliver  the  boy  out  of  the  custody  of  his  aunt 
and  tell  him  to  go  where  he  pleased ;  that  the  guardian  might 
maintain  his  right  by  other  modes  of  action.  I  recollect  noth- 
ing which  at  all  questions  the  propriety  of  this  decision  unless  it 
be  the  case  cited  from  8  Mod.  214,  and  3  Burr.  1436.  The  case 
in  Modern  is  not  very  satisfactorily  reported  there  but  is  better 
in  other  books ;  and  in  the  case  in  Burrow,  which  is  indeed  a 
leading  and  conclusive  case,  that  in  Modern  as  well  as  the  other 
cases  on  this  subject,  are  correctly  abridged  by  Lord  Mansfield, 
and  the  doctrine  he  lays  down  I  take  to  be  law.  He  there  says : 
"  In  cases  of  writs  of  habeas  corpus  directed  to  private  persons 
the  court  is  bound  to  set  the  infant  free  from  all  improper  re- 
straint, and  this  ex  debito  justitice,  but  it  is  not  bound  to  deliver 
him  over  to  anybody  nor  to  give  him  any  privilege.  This  must 
be  left  to  the  discretion  of  the  court  under  the  circumstances." 
In  the  case  of  Mary  Johnson  the  court  did  not  even  order  the 

*448 


526  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Newbold's  Executors  v.  Lamb. 


child  into  the  possession  of  the  guardian  but  permitted  him  to 
take  her. 

When  we  look  into  this  case  I  am  free  to  say  that  I  think 
the  guardians  entitled  to  the  infant.  They  have  a  right  to 
take  possession  of  it  and  the  stepfather  has  no  right  to  resist. 
If  he  do,  he  does  it  at  his  peril,  and  that  peril  by  no  means 
small.  But  when  we  inquire  why  this  court,  on  this  writ,  should 
interfere,  *I  do  not  find  any  imprisonment  or  restraint  which 
alone  authorizes  us  to  interfere,  and,  therefore,  I  am  of  opinion 
that  no  order  for  delivery  of  the  infant  to  the  guardian  should 
be  made,  but  let  the  child  go  where  he  will ;  and  let  the  guard- 
ian, if  he  pleases,  either  take  possession  of  him,  or,  by  course  of 
law,  enforce  his  right  to  the  custody  of  his  person. 

ROSSELL,  J.,  dissented.  He  thought  that  the  guardians  were 
entitled  to  the  custody  of  the  person  of  the  ward  ;  that  the 
habeas  corpus  was  a  proper  mode  to  obtain  the  possession  of  his 
person,  and  that  the  circumstances  of  the  case  required  that  the 
court  should  order  the  defendant  immediately  to  deliver  the  boy 
to  his  guardians. 


The  executors  of  DANIEL  NEWBOLD,  deceased,  v.  JOSEPH 

LAMB. 

Proof  of  the  handwriting  of  subscribing  witness  is  not  sufficient  to  send  to 
the  jury  a  bill  having  ink-scroll  for  a  seal,  and  which  does  not,  in  the  body 
of  it,  say  that  it  was  sealed,  (a) 

On  rule  to  show  cause  why  a  new  trial  should  not  be  granted. 
This  was  an  action  of  debt  originally  brought  in  the  common 

(a)  See  Hoagland  v.  Sebring,  ante  105;  Force  v.  Craig,  2  Hal.  272  ;  Corlies  v. 
Van  Note,  1  Harr.  329  ;  Hopewell  v.  Amwell,  1  Hal.  176;  Ourtis  v.  Hall,  1  South. 
148;  Perrine  v.  Cheeseman,  6  Hal.  174;  Acts  of  1875  p.  56. 

*449 


2  SOUTH.]          FEBRUARY  TERM,  1819.  527 


Newbold's  Executors  r.  Lamb. 


pleas  of  Burlington  county,  and  removed  by  habeas  corpus  into 
the  supreme  court.  The  plaintiffs  declared  against  the  defendant 
on  a  sealed  bill  and  made  profert  of  the  same. 

The  defendant  prayed  oyer,  and  after  setting  out  the  instru- 
ment pleaded  non  est  factum. 

Upon  the  issue  thus  joined  between  the  parties,  the  cause 
came  on  for  trial  at  the  Burlington  circuit  in  November,  1817. 
The  plaintiffs,  after  proving  the  death  of  William  Coate,  the 
subscribing  witness  to  the  following  paper-writing,  and  proving 
the  handwriting  of  the  said  William  Coate,  offered  in  evidence 
the  bill  of  which  oyer  had  been  given,  in  the  following  words,  viz. : 

"  For  value  received  I  promise  to  pay  Daniel  Newbold  or 
order,  on  or  before  the  first  day  of  May  next,  one  hundred  and 
seventy  dollars,  with  interest.  April  the  first,  one  thousand 
eight  hundred  and  six.  Jos.  LAMB.  [SCROLL.] 

"  Witness  present, 

"  WILLIAM  COATE." 

*To  this  instrument  the  defendant  objected  until  some  proof 
was  offered  to  show  that  it  had  been  sealed  and  delivered,  and 
contended  that  it  was,  without  such  proof,  inadmissible  on  the 
issue  joined  and  insufficient  to  sustain  it  on  the  part  of  the 
plaintiffs.  His  Honor  Judge  Rossell  overruled  the  objections. 
No  other  evidence  was  offered  either  by  the  plaintiffs  or  defend- 
ant, and  the  jury  found  a  verdict  for  the  plaintiffs  for  $307.93. 

The  case  was  not  argued,  but  Coxe,  for  the  defendant,  referred 
the  court  to  1  Shep.  Touch.  64,  66,  67;  Coke  Lit.  6  a  85  b ; 
IS  Viner  W  tit.  "Faits"  let.  H 9;  Bro.  Plea.  113  tit.  "Fait"; 
Peake  Ev.  100;  6  Johns.  $46;  1  Wash.  170;  1  Mun.  487. 

Earing,  for  plaintiff,  referred  the  court  to  Swift  Ev.  26;  PhiL 
"JIW/  1  Johns.  $30;  IS  Mod.  607. 

The  chief-justice  delivered  the  opinion  of  the  court. 

KlRKPATRICK,  C.  J. 

This  is  an  action  of  debt  upon  a  sealed  bill,  in  these  words,  to  wit : 

*450 


528  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Newbold's  Executors  v.  Lamb. 


"  For  value  received,  I  promise  to  pay  Daniel  Newbold  or 
order,  on  or  before  the  first  day  of  May  next,  one  hundred  and 
seventy-five  dollars,  with  interest.  April  the  first,  one  thousand 
eight  hundred  and  six.  JOSEPH  LAMB.  [SCROLL,.] 

"  Witness  present, 
"WILLIAM  COATE." 

Upon  the  trial  the  plaintiff  proved  the  death  and  handwriting 
of  the  said  William  Coate,  the  subscribing  witness,  and  then 
offered  his  bill  in  evidence,  (a)  To  this  it  was  objected  by  the 
defendant,  unless  some  proof  should  be  offered  to  show  that  the 
said  bill  had  been  sealed  and  delivered,  but  the  objection  was 
overruled,  and  a  verdict  rendered  for  the  plaintiff.  Upon  the 
coming  in  of  the  postea  the  defendant  took  a  rule  to  show  cause 
&c.  The  case  was  submitted  without  argument. 

The  objection  could  not  be  to  the  scroll  or  the  ink-seal,  for 
the  statute  is  positive  "  that  any  instrument  for  the  payment  of 
money  to  which  the  person  making  the  same  shall  affix  a  scroll, 
or  ink,  or  other  device,  by  way  of  seal,  shall  be  taken  and  ad- 
judged to  be  of  the  same  force  and  obligation  as  if  it  were  actu- 
ally sealed  with  wax."  Neither  can  it  be  to  the  mode  of  proof, 
for  it  has  so  many  times  been  determined,  and  has  become  a 
*principle  so  well  settled  that  proof  of  the  death  and  handwriting 
of  a  subscribing  witness  to  a  deed  is  sufficient  to  pass  the  deed  to 
the  consideration  of  the  jury,  that  it  cannot  now  be  questioned. 
Were  it  otherwise,  a  bill  or  bond  or  other  obligation  under  seal 
would  be  a  very  uncertain  security  indeed ;  for,  as  Lord  Coke 
hath  observed  upon  this  subject,  no  man  can  keep  his  witnesses 
alive,  and  time  weareth  out  all  men. 

The  objection,  then,  must  rest  upon  the  form  of  the  attestation, 
if  I  may  so  call  it,  or  the  his  testibus  clause,  which  does  not  ex- 
press, as  is  usual,  that  the  instrument  was  sealed  and  delivered 
in  the  presence  of  the  witness.  The  only  reason  why  the  proof 
of  the  handwriting  of  the  subscribing  witness  is  taken  as  suffi- 
cient proof  of  the  execution  of  a  deed  is  founded  upon  the  pre- 

(a)  Patterson  v.  Tucker,  4  Hal.  332;  Boylan  ads.  Meeker,  4  Dutch.  294;  Van 
Doren  v.  Van  Doren,  Penn.  *1022  ;  Reformed  Church  v.  Ten  Eyck,  1  Dutch.  40  ; 
Servis  v.  Nelson,  1  McO<rt.  94.  , 

*451 


2  SOUTH.]  FEBRUARY  TERM,  1819.  529 


Newbold's  Executors  v.  Lamb. 


sumption  that  what  an  honest  man  hath  attested  under  his  hand 
is  true ;  that  when  he  says  the  instrument  was  sealed  and  deliv- 
ered in  his  presence  the  presumption  is  that  it  was  so  sealed  and 
delivered.  But  when  the  instrument  itself  does  not  in  the  body 
of  it  purport  to  be  a  sealed  instrument,  when  it  is  not  in  the 
form  of  a  bill,  bond  or  other  obligation  usually  under  seal,  and 
when  the  attestation  says  nothing  about  sealing  and  delivery, 
this  presumption  fails.  This  instrument  does  not  purport  to  be 
sealed ;  the  witness  has  not  said  that  it  was  sealed  and  delivered 
in  his  presence;  there  is  nothing  in  the  whole  writing  importing 
any  such  thing.  The  scroll  may  have  been  made  after  the  at- 
testation as  well  as  before,  and  indeed,  judging  from  the  face  of 
the  instrument  only,  the  probability  is  so,  for  the  attestation  is 
not  according  to  the  usual  form,  the  common  practice  of  ,men  in 
similar  cases,  but  wholly  different  from  it.  (a)  Can  we,  then, 
make  this  dead  man  say  what  he  never  did  say  when  he  was 
living  ?  can  we  make  him  prove,  now  that  he  is  dead,  what,  per- 
haps, he  could  not  prove  if  he  were  here  present  in  court  ?  I 
think  not. 

It  is  of  high  importance  to  keep  up  the  distinction  between 
instruments  sealed  and  not  sealed ;  they  are  different  in  their 
nature  and  in  their  effects,  and  before  they  can  with  safety  IK* 
confounded  together,  our  whole  system  of  law  must  be  new  mod- 
eled. Indeed,  it  may  with  safety  be  said  that  the  statute  itself, 
upon  this  subject,  is  a  dangerous  innovation  upon  the  settled 
principles  of  our  law,  without  an  adequate  object.  Though  I 
have  great  reluctance  to  impede  the  recovery  of  money  where  it 
is  justly  due,  yet  I  cannot  think  it  justifiable  to  break  down 
gen*eral  principles  to  accommodate  particular  cases,  and  there- 
fore am  of  opinion  that — 

The  poatea  must  be  delivered  to  the  defendant. 

SOUTHARD,  J. 

My  view  of  this  question  differs  somewhat  from  that  cf  the 
rest  of  the  court.  When  a  subscribing  witness  is  dead  or  absent 

(a)  Force  v.  Craig,  9  Hal.  979. 

*452  34 


530  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Chamberlain  v.  Letson. 


it  is  proper  to  prove  his  handwriting,  and  proof  of  his  hand- 
writing is  prima  facie  proof  of  everything  which  appears  on  the 
face  of  the  instrument  sufficient  to  put  the  other  party  on  his 
defence,  (a)  When,  therefore,  the  proof  of  Coate's  handwriting 
was  made,  I  think  the  bill  ought  to  have  been  submitted  to  the 
jury,  for  them  to  determine  whether  the  seal  was  upon  it  when  it 
was  executed ;  and  the  court  ought  carefully  to  have  instructed 
the  jury  that,  in  this  action,  proof  of  the  seal  was  a  necessary 
part  of  the  plaintiff's  case,  and  that  unless  they  were  satisfied 
from  the  evidence  that  the  bill  was  sealed  when  it  was  executed, 
and  had  not  since  been  altered,  they  ought  to  find  for  the 
defendant. 

Rule  for  new  trial  granted. 


JESSE  CHAMBERLAIN  v.  JOHN  LETSON. 

1.  Parol  evidence  admitted  to  explain  ambiguity  in  lease  and  show  what  is 
held  under  it.  (6) 

2.  Verdict  against  evidence  and  the  charge  of  the  court. 


In  trespass. 

The  opinion  of  the  court  was  delivered  by  the  chief-justice. 

KlEKPATRICK,  C.  J. 

This  cause  was  tried  at  the  Middlesex  circuit  in  June  last,  and 
a  verdict  rendered  for  the  plaintiff  for  $30.  In  September  term 
there  was  a  rule  to  show  cause  why  there  should  not  be  a  new 
trial  because  the  verdict  was  contrary  to  evidence,  and  also 
because  it  was  contrary  to  the  charge  of  the  court.  And  the  case 
is  now  submitted  without  argument. 

(a)  Den  v.  Van  Houten,  5  Hal.  270  ;  Kingwood  v.  Bethlehem,  1  Or.  222. 

(b)  Hand  v.  Ho/man,  3  Hal    78;   Den  v.  Oubberly,  7  Hal.  309;   Nevius  v. 
Martin,  1  Vr.  468 ;  Jackson  v.  Perrine,  6  Vr.  144 ;   Opdyke  v.  Stephens,  4  Dutch. 
84;  FuUer  v.  Carr,  4   Vr.  157 ;    McLaughlin  v.  Bishop,  6  Vr.  512 ;  Moore  v. 
Moore,  Coxe  376  ;  Hoisted  v.  Meeker,  3  C.  E.  Or.  136. 


2  SOUTH.]  FEBRUARY  TERM,  1819.  631 


Chamberlain  r.  Letson. 


At  the  trial  the  plaintiff,  in  support  of  his  action,  gave  in 
evidence  a  lease  from  the  defendant  for  a  house  and  lot  of  land 
•containing  three  acres,  be  the  same  more  or  less,  situate  at  or  near 
Raritan  landing,  in  the  township  of  Piscataway ;  and  the  only 
question  was  whether  this  lease  contained  the  lands  upon  which 
<he  trespass  was  committed. 

*It  appeared  in  evidence  that  at  the  time  of  making  the  lease 
John  Letson,  the  defendant,  was  in  possession  of  the  house 
•demised  and  about  seven  acres  of  land ;  that  the  house  and 
house-lot  were  situate  on  the  north  side  of  the  road  there,  but 
that  the  principal  part  of  the  land  lay  on  the  south  side  thereof 
in  one  body,  and  not  separated  by  any  fence.  And  under  these 
indefinite  words  of  the  lease,  describing  the  lot  to  consist  of 
three  acres,  be  the  same  more  or  less,  the  plaintiff  claimed  the 
whole  seven  acres,  (a) 

The  defendant  then  called  several  witnesses,  who  testified  that 
these  seven  acres  now  claimed  by  the  plaintiff  under  this  lease 
originally  consisted  of  two  lots  ;  that  these  lots  were  purchased 
In*  the  defendant  separately,  at  different  times  and  of  different 
persons  •  that  after  they  came  into  his  hands  the  one  still  con- 
tinued to  be  called  the  tavern-lot,  and  contained  about  three 
Acres,  and  the  other  to  be  called  by  the  name  of  the  person  from 
whom  it  was  purchased,  and  that  there  was  still  to  be  seen  the 
remains  of  an  old  ditch,  or  a  range  of  stumps,  marking  the  line 
which  originally  separated  them  ;  that  when  the  plaintiff  was 
about  to  take  this  lease  this  line  was  distinctly  pointed  out  to 
him  and  the  lot  to  be  included  in  the  lease,  containing,  together 
with  the  house-lot,  three  acres,  more  or  less,  particularly  shown. 
And  it  was  further  testified  by  the  person  who  drew  the  lease 
that  the  parties  were  present  when  instructions  were  given  for 
the  drawing  of  it ;  that  they,  or  one  of  them,  said  they  could 
not  then  give  the  lines  exactly,  but  that  it  was  not  necessary  to 
be  particular  in  that  respect,  as  Letson  held  under  separate  deeds, 

(o)  See  Miller  v.  Chetvood,  1  Or.  Ok.  199;  Coute  v.  BoyUs,  3  Or.  Ck.  tit; 
Weart  v.  Rose,  1  C.  E.  Or.  S90  ;  Clark  v.  Carpenter,  4  C.  E.  Or.  SS8 ;  National 
Oo.  v.  Bruner,  4  C.  E.  Or.  SSI  ;  McEowen  v.  Lewis,  £  Dutch.  451. 

*453 


NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Merritt  v.  Johnson. 


which  would  always  sho\\  where  the  line  intended  was  and  what 
the  lease  euntained. 

To  all  this  explanatory  testimony  the  plaintiff  objected,  saying 
that  the  lease  must  speak  for  itself  and  could  neither  bo  enlarged 
nor  restrained  by  parol  proof;  and  upon  the  success  of  this  ob- 
jection he  seemed  to  rely  for  his  success  in  the  cause;  for  the 
tarts  thus  proved  by  the  plaintiff  stood  wholly  uneontnulietcd. 

It  was  perfectly  clear,  however,  that  the  testimony  was  admissi- 
ble upon  the  strictest  rules ;  (a)  and  even  if  it  had  been  less  so  1 
should  have  thought  myself  bound  to  admit  it,  because  the  very 
same  cause  of  action  had  once  been  trial  before  a  justice,  ami 
brought  up  here  by  oertioran  upon  this  very  question  ;  the  jus- 
tice, on  the  trial  before  him,  had  rejected  this  testimony,  and  for 
that  cause  the  judgment  was  reversed  here. 

*It  was  attempted,  by  way  of  charge  to  the  jury,  to  explain 
the  ground  upon  which  this  testimony  was  admitted,  and  to  show 
the  legitimate  consequences  of  it  in  the  determination  of  the  cause. 
They,  however,  it  seems,  thought  differently  on  both  points,  and 
found  a  verdict  for  the  plaintiff.  And  in  doing  so  I  am  satisfied 
they  have  mistaken  both  the  law  and  the  fact,  and  that  therefore 
the  verdict  must  be  set  aside  and  a  new  trial  granted,  if  the  party 
shall  think  proper  to  take  a  new  trial. 

New  trial  granted. 


JOHN  DEN,  ex  dem.  ABRAHAM  MERRITT,  t>.  J.  JOHNSON. 

Verdict  not  set  aside  where  contradictory  evidence  and  the  judge  certifies 
that  he  is  satisfied.    Definition  of  the  testamentary  capacity. 


In  ejectment. 

This  cause  was  tried  at  the  Bergen  circuit,  in  October,  181 6- 
At  the  subsequent  term  a  rule  was  granted  to  show  cause  why 

(a)  Nn-ius  v.  Martin,  1  Vr.  4&*  ;  Jackson  v.  JVmiw,  6  Fr.  144  i  Aeb*»  v. 
Wfotoii,  7  a  E.  Or.  446;  but  see  Cto  v.  Sennet,  1  Or.  167;  Leigk  v.  Savitiger 
1  McQxrt.  1S5. 

*454 


2  SOUTH.]  FEBRUARY  TERM,  1819. 


the  verdict  should  not  be  set  wide.     The  state  of  the  ewe,  as 
«igned  by  the  chief-justice,  is  in  the  following  words :  (a) 

"  It  was  in  evidence  on  the  trial  of  this  cause  that  one  Sav- 
annah Bailey  was  seized  in  fee  of  the  premises  in  question,  and 
being  so  seized,  died  without  issue,  on  or  about  the  20th  day  of 
April,  1813 ;  that  she  left  one  brother,  Abraham  Merritt,  the 
lessor  of  the  plaintiff,  and  four  children  of  a  dfrrancd  sister,  and 
that  beside  these  she  never  had  brother  or  sister ;  the  lessor  of 
the  plaintiff  claimed  two-thirds  of  the  premises,  under  the  statute 
of  dements,  as  brother  of  the  said  Susannah  Bailey. 

"  The  defendant,  by  wa y  of  defence,  proposed  to  show  not  a 
title  in  himself,  but  a  title  out  of  the  plaintiff,  and  for  this  purpose 
gave  in  evidence  a  paper  purporting  to  be  the  trntanirnt  and  bat 
will  of  the  said  flimr™ k  Bailey,  bearing  date  the  18th  day  of 
April,  1813,  devising  her  whole  estate,  both  real  and  personal, 
to  the  said  four  children  of  her  said  deceased  sister,  and  consti- 
tuting Josiah  Pnrdy  and  Joseph  Pnrdy,  two  of  the  said  child- 
ren, and  Josiah  Johnson,  the  ^familantj  to  be  executors  thereof 
And  the  validity  of  this  will  was  the  whole  matter  of  controversy 
in  this  suit. 

MTbe  plaintiff  alleged  that  the  testatrix,  at  the  time  of  sign- 
ing the  will,  was  so  far  broken  by  the  pressure  of  her  Hjty^^ 
which  *had  been  very  violent  and  very  rapid,  and  that  the  hand 
of  death  was  so  heavy  upon  her  that  she  was  incapable  of  the 
•exercise  of  a  sound  and  disposing  mind  and  memory ;  that  the 
said  will  had  been  written  by  the  said  Josiah  and  Joseph  Pnrdy, 
in  the  kitchen,  according  to  the  contrivance  of  their  own  minds, 
without  any  consultation  with  or  direction  from  the  said  testa- 
trix; that  the  said  testatrix  had  never  read  the  said  will,  being, 
in  her  situation,  altogether  incapable  of  doing  so,  and  that  the 
same  had  never  been  read  to  her  by  any  other  person. 

u  To  establish  these  facts  the  plaintiff  called  not  only  the  testa- 
mentary witnesses  but  also  a  number  of  others  who  were  visitors 
and  attendants  during  the  illness  of  the  testatrix,  who  were  very 
<arefnlly  and  very  skillfully  examined  and  cross-examined  touch- 
la)  Thv  Hiarg*  tomoanttA  on,  SM»  r.  J/uwf,  i  Or.  Ck.  568. 

•455 


534  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Johnson. 


ing  these  matters,  and  touching  all  the  circumstances  that  could 
be  brought  to  bear  upon  them.  The  case  was  then  very  ably- 
summed  on  both  sides,  and  with  a  very  few  words,  by  way  of 
charge,  from  the  bench,  was  submitted  to  the  jury. 

"  It  was  stated  to  the  jury,  in  the  charge,  that  in  examinations- 
of  wills  the  sanity  or  insanity  of  the  testators  was  always  a  ques- 
tion of  fact  to  be  decided  by  the  jury,  to  be  decided  by  them 
upon  the  whole  evidence  according  to  the  plain  principles  of 
common  sense  unembarrassed  by  technical  language  or  unin- 
telligible rules ;  that  after  probate  the  sanity  of  the  testator  was. 
always  to  be  presumed  in  favor  of  the  will,  the  insanity  always- 
to  be  proved  by  him  that  alleges  it ;  that  the  terms  '  sound  and 
disposing  mind  and  memory/  so  commonly  used  on  this  subject,, 
stand  opposed  not  only  to  idiocy  and  lunacy  but  to  all  derange- 
ment of  mind  occasioned  by  melancholy,  grief,  sorrow,  misfor- 
tune, sickness  or  disease ;  that  it  is  true  that  every  discomposure 
of  the  mind  by  these  causes  will  not  render  one  incapable  of 
making  a  will ;  it  must  be  such  a  discomposure,  such  a  derange- 
ment as  deprives  him  of  the  rational  faculties  common  to  man,, 
that  sound  signifies  whole,  unbroken,  unimpaired,  unshattered  by 
disease  or  otherwise ;  that  a  '  disposing  mind  and  memory '  is  a 
mind  and  memory  which  have  the  capacity  of  recollecting,  dis- 
cerning and  feeling  the  relations,  connections  and  obligations  of 
family  and  blood ;  that  though  it  had  been  sometimes  said,  as. 
had  been  stated  from  the  books,  that  if  one  could  count  -ten,  tell 
his  name,  say  the  day  of  the  week,  or  even  ask  for  food,  it  is  a 
sufficient  evidence  of  a  disposing  mind,  yet  such  sayings,  *though 
they  show  that  wills  are  not  lightly  to  be  set  aside  on  sugges- 
tions of  incapacity,  can  and  ought  to  have  but  little  weight  with 
rational  men,  investigating  the  truth  upon  their  oaths,  that  if,, 
upon  the  whole,  they  should  be  of  opinion  that  the  mental 
powers  of  the  testatrix  were  so  far  enfeebled  and  broken  as  that 
she  could  not  make  a  discreet  disposition  of  her  affairs  herself,, 
and  that  the  will  in  question  was  devised  by  other  persons  and 
only  assented  to  by  her  upon  being  asked,  without  the  power  of 
understanding  it,  then  they  ought  to  find  for  the  plaintiff. 

"  Again.     It  was  stated  that  though  they  should  find  that  the 

*456 


2  SOUTH.]  FEBRUARY  TERM,  1819.  535 


Pen  r.  Johnson. 


testatrix  did  possess  her  mind  in  such  a  degree  that  she  might 
have  made  a  rational  disposition  of  her  affairs,  yet,  if  they 
should  be  of  opinion,  from  the  whole  evidence,  that  the  will  was 
written  without  any  consultation  with  or  direction  from  her,  and 
that  from  her  great  weakness  and  debility  she  was  unable  to  read 
the  same,  as  the  plaintiff  had  alleged,  then  it  was  incumbent 
on  the  defendant  to  prove  that  it  had  been  fairly  read  or  fully 
explained  to  her,  for  without  that,  though  it  might  be  her  will  in 
form  it  could  not  be  so  in  fact  and  in  truth,  and  this  rule  ought 
to  be  insisted  on  in  this  case  particularly,  because  Purdy,  one  of 
the  executors  and  devisees  in  the  will  named,  expressly  prohibited 
the  testamentary  witnesses  from  reading  the  same  to  the  testa- 
trix before  she  signed  it ;  if,  therefore,  under  such  circumstances, 
the  defendant  had  failed  in  such  proof,  they  ought  to  find  for  the 
plaintiff.  But  that  when  it  was  said  the  reading  or  explanation 
of  this  will  ought  to  be  proved  it  was  not  intended  that  this 
proof  must  necessarily  be  direct  and  positive,  it  might  also  be 
proved  by  such  circumstances  as  would  satisfy  the  minds  of  ju- 
dicious and  rational  men  that  it  has  been,  and  that  in  this  case 
the  jurors  were  to  be  the  sole  judges. 

"  But  that  if,  on  the  other  hand,  they  should  be  of  opinion 
that  the  testatrix,  at  the  time  of  signing,  so  far  possessed  her 
rational  powers  as  to  be  able  to  dispose  discreetly,  and  even  in 
such  a  state  as  to  be  able  to  read  understandingly,  then  proof 
that  she  actually  did  read  the  will  or  had  it  read  or  explained  to 
her  was  not  necessary,  but  it  was  to  be  presumed,  as  in  all  other 
cases,  and  if  she  had  not  read  it,  it  was  her  own  fault.  With 
this  charge  the  jury  retired,  and  having  returned  into  court  pro- 
nounced a  verdict  for  the  plaintiff,  and  with  this  verdict  I  was 
perfectly  satisfied." 

*Iu  addition  to  the  case  as  stated  by  the  chief-justice,  the  par- 
ties agreed  upon  a  report  of  the  evidence  as  given  on  the  trial ; 
but  from  the  opinion  expressed  by  the  court,  a  detail  of  it  is  not 
supposed  to  be  necessary. 

Hornblower  and  Hahey,  for  the  defendant,  in  support  of  the 
rule  argued  :  1.  That  the  presumption  of  law  was  in  favor  of  the 

*457 


536  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Johnson. 


sanity  of  the  testatrix,  and  the  legal  execution  of  the  will ;  that 
there  was  no  fact  to  impeach  this  presumption,  but  that  all  the 
evidence  tended  to  prove  that  the  testatrix  possessed  the  testa- 
mentary capacity,  and  that  therefore  the  jury  had  grossly  erred 
in  their  verdict.  2.  That  the  charge  of  the  court  was  contrary 
to  law. 

Attorney- General  answered  for  the  plaintiff. 

ROSSELL,,  J. 

In  this  action  the  defence  set  up  by  the  defendant  was  the  will 
of  Susannah  Bailey,  devising  the  premises  in  question  to  the 
four  children  of  a  deceased  sister.  And  the  validity  of  this  will 
was  the  whole  matter  in  controversy,  the  plaintiff  alleging  that 
the  testator  at  the  time  of  signing  that  will,  such  was  the  violence 
of  her  disease  that  the  hand  of  death  was  heavy  on  her  and 
rendered  her  incapable  of  exercising  a  sound  and  disposing  mind ; 
that  the  supposed  will  had  been  written  by  the  defendant  and 
one  Joseph  Purdy,  in  the  kitchen,  according  to  the  contrivance 
of  their  own  minds,  and  without  any  consultation  with  the  testa- 
trix, who  had  never  read  the  will,  was  incapable  of  doing  so,  and 
that  it  had  never  been  read  to  her.  To  establish  these  facts  the 
plaintiff  called  a  number  of  witnesses  who  were  present  at  the 
time  of  the  execution  of  the  supposed  will,  and  during  the  time 
of  her  extreme  illness.  The  chief-justice  charged  the  jury,  who 
found  a  verdict  for  the  plaintiff,  with  which  he  declares  himself 
perfectly  satisfied. 

To  this  charge  of  the  chief-justice  exceptions  are  taken,  and 
this  motion  for  a  new  trial  made. 

On  examining  the  charge  of  the  chief-justice,  it  appears  to  me 
to  be  substantially  consistent  with  the  law  and  the  fact.  It  is 
true  that  some  authorities  say  that  if  a  man  is  so  witless  that  he 
cannot  number  twenty,  tell  his  own  age,  nor  know  his  father  01 
mother,  he  cannot  make  a  testament.  Yet  this,  I  apprehend,  is 
only  putting  an  extreme  case,  merely  to  show  that  wills  are  not 
lightly  to  be  set  aside  for  incapacity  of  the  testator,  though  he 
might  rather  *incline  to  the  weak  or  foolish  amongst  men  ;  foi 

*458 


2  SOUTH.]  FEBRUARY  TERM,  1819.  537 


Den  v.  Johnson. 


the  same  author  continues :  "  It  is  requisite  that  the  testator,  when 
he  makes  his  will,  should  be  of  sound  memory  and  competent 
understanding  to  dispose  of  his  estate  with  reason."  Lovdass 
139,140-  So  in  141,  14®'  The  mere  acknowledging  of  a  writ- 
ing by  a  blind  man,  that  it  is  his  will,  is  not  sufficient,  unless 
there  be  satisfactory  proof  that  the  will  had  been  read  over  to 
him.  The  same  precautions  are  requisite  in  the  case  of  persons 
who  cannot  read,  or  who  by  sickness  are  incapacitated  to  read 
the  will  at  the  time,  (a) 

In  this  case  there  was  also  an  allegation  of  fraud  in  imposing 
&  will  contrived  by  others  on  the  testatrix.  (6)  The  whole  proof 
was  before  the  jury ;  on  this  proof,  under  the  charge  of  the  court, 
they  found  a  verdict  for  the  plaintiff,  with  which  the  judge  has 
declared  himself  perfectly  satisfied.  And  I  can  see  no  sufficient 
reason  for  disturbing  that  verdict. 

SOUTHARD,  J. 

Two  reasons  have  been  principally  relied  on  for  setting  aside 
this  verdict — misdirection  of  the  court  in  matter  of  law,  and 
error  in  the  jury  in  matter  of  fact,  upon  the  weight  of  evidence. 

The  objection  to  the  charge  of  the  court  applies  to  that  part 
in  which  the  judge  explained  the  words  "  sound  and  disposing 
mind  and  memory,"  but  principally  to  the  definition  of  the  word 
sound,  (c)  The  cause  seemed  to  turn  upon  the  proper  construc- 
tion and  application  of  those  words,  and  therefore  a  minute  ex- 
planation of  their  meaning  was  given.  In  forming  our  opinion 
of  this  reason  it  is  fair  as  well  as  safe  to  look  through  the  whole 
oharge,  at  least  so  much  of  it  as  relates  to  these  terms  ;  its  cor- 
rectness is  to  be  determined  by  the  whole,  taken  together. 

(a)  Sufern  v.  Butler,  S  C.  E.  Or.  £20,  4  C.  E.  Or.  £02  ;  Hyer  v.  Little,  5  C.  E. 
Or.44S. 

(b)  Whitenack  v.  Stryker,  1  Or.  Ch.  9;  Qoble  v.  Grant,  2  G.\  Ch.  629;   Will 
of  Nancy  Maxwell,  4  Hal.  Ch.  251;  Lynch  v.  dement*,  9  C.  E.  Or.  4SI ;  Hunt 
v.  Hunt,  2  Beas.  161 ;  Low  v.  Williamson,  1  Or.  Ch.  82. 

(t)  Den  v.  Vandevt,  post  660 ;  Lowe  v.  Williamson,  1  Or.  Ch.  82 ;  Andrea 
v.  WeUer,  2  Or.  Ch  604;  Den,  TrumbuU  v.  Gibbons  2  Zab.  117 ;  Turner  v. 
C heeseman,  2  McCart.  243;  MaUerof  Vanaukcn,  2  Stock.  187. 


538  NEW  JEESEY  SUPREME  COUKT.      [5  LAW 


Den  v.  Johnson. 


The  chief-justice  first  explained  to  the  jury  the  meaning  and 
import  of  the  word  sound  by  itself;  he  then  tells  them  that  "  a 
disposing  mind  and  memory"  is  a  mind  and  memory  which 
have  the  capacity  of  recollecting,  discerning  and  feeling  the  re- 
lations, connections  and  obligations  of  family  and  blood.  And 
these  definitions  I  take  to  be  accurately  true.  After  explaining 
the  separate  meaning  of  the  words  in  the  passage  he  connects- 
them  together,  and  giving  their  united  result,  he  adds :  "  If,  upon 
the  whole,  the  jury  should  be  of  opinion  that  the  mental  powers 
of  the  testatrix  were  so  far  enfeebled  and  broken  as  that  she 
could  not  make  a  discreet  disposition  of  her  affairs  herself,  and 
*that  the  will  in  question  was  devised  by  other  persons  and  only 
assented  to  by  her  on  being  asked,  without  the  power  of  under- 
standing it,  then  they  ought  to  find  for  the  plaintiff."  A  result 
more  true  could  not  have  been  given,  a  result  more  favorable  to 
the  defendant  ought  not  to  have  been  desired. 

Should  it,  then,  even  be  admitted  that  in  describing  the  force 
of  the  word  sound  by  itself,  too  strong  a  language  has  been  used, 
still  I  do  not  perceive  that  it  affords  good  cause  for  a  new  trial. 
The  definition  of  the  testamentary  capacity  taken  together  is 
clear,  explicit  and  true. 

In  encountering  the  second  reason  the  counsel  for  the  defend- 
ant have  no  ordinary  task  to  perform.  It  is  common  and  proper 
to  set  aside  a  verdict  which  is  clearly  and  conclusively  against 
the  weight  of  the  evidence  and  with  which  the  court  who  tried 
the  cause  is  dissatisfied.  But  where  the  case  turns  on  the  opin- 
ion which  shall  be  entertained  of  the  testamentary  capacity  and 
the  court  is  perfectly  satisfied  with  the  verdict,  it  is  seldom,  per- 
haps never,  found  that  a  new  trial  is  granted,  and  such  is  the 
present  case. 

The  case  presented  by  the  chief-justice  furnishes  no  proof  that 
the  jury  has  erred;  and  if  we  depart  from  his  state  of  the  facts, 
and  look  into  the  evidence  as  agreed  upon  by  the  parties,  the 
proof  is  not  increased.  The  counsel  for  the  defendant  have 
stated  several  points  on  which  they  supposed  that  there  had  been 
either  a  great  misapprehension  or  a  disregard  of  the  evidence ; 
but  it  is  to  be  remarked  that  on  each  of  these  points  there  was  a 

*459 


2  SOUTH.]          FEBRUARY  TERM,  1819.  539 


Van  Doren  r.  Everitt. 


contradiction  between  the  witnesses.  In  such  circumstances 
much,  nay,  everything,  must  have  depended  on  the  character  and 
credibility  of  the  witnesses,  and  on  those  matters  of  which  the 
jury  were  the  competent  and  proper  judges.  I  am  not,  therefore, 
prepared  to  say  that  I  find  cause  for  a  new  trial. 

BY  THE  WHOLE  COURT — Let  the  rule  be  discharged. 


*C.  VAN  DoREtf  and  H.  VAN  DOREN  v.  T.  S.  EVERITT. 


1.  Lease  by  guardian  voidable,  but  is  confirmed  by  an  act  of  the  ward,  ex- 
pressing his  assent,  after  he  is  twenty-one. 

2.  Tenant  has  a  right  of  entry  on  the  land,  after  expiration  of  the  lease,  in 
order  to  remove  the  usual  crops,  unless  there  be  agreement  to  the  contrary. 


This  cause  was  tried  in  the  Middlesex  circuit  in  June  term, 
1817.  The  case  made  out  on  the  trial  was  this :  Benjamin 
Doughty,  as  guardian  of  Thomas  S.  Everitt  and  his  sister,  on 
the  10th  of  February,  1813,  made  a  lease  of  their  lands  to  the 
plaintiffs  for  the  term  of  two  years  from  the  1st  of  April  then 
next,  containing  special  agreements  for  particular  privileges  and 
duties  (as  per  lease).  The  defendant  attained  his  age  of  twenty- 
one  years  on  the  22d  of  July,  1814.  The  plaintiffs  continuing 
in  possession,  under  their  lease,  the  defendant  gave  them  notice 
in  the  usual  form  to  quit  &c.,  at  the  expiration  thereof,  but  they, 
notwithstanding,  on  the  last  days  of  March  or  the  first  days  of 
April,  1815,  or  perhaps  partly  on  all  these  days  (for  there  is  a 
difference  as  to  this  matter  among  the  witnesses),  sowed  part  of 
the  said  lands  with  oats,  and  when  the  harvest-time  came  the  de- 
fendant cut  and  carried  away  the  crop.  There  was  evidence  also 
of  the  quantity  and  value  of  the  said  crop  so  cut  and  carried 
away. 

Upon  this  state  of  the  case  there  was  a  motion  for  a  nonsuit. 
1.  Because  the  lease  being  for  a  longer  time  than  the  infancy  of 

*460 


540  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Van  Doren  v.  Everitt. 


the  ward,  it  is  void ;  and  if  not  wholly  void,  it  is  so,  at  least, 
after  the  ward  attained  his  age.  2.  Because  the  interest  of  the 
plaintiffs  in  the  said  lands  being  certain  and  determinate,  it  was 
their  own  folly  to  sow  after  the  expiration  of  their  term,  or  even 
at  the  close  of  it,  without  covenants  of  ingress  and  egress  for 
taking  of  the  crops. 

But  by  the  court.  1.  Though  the  lease  of  a  guardian  extend- 
ing beyond  the  infancy  of  his  ward  should  be  deemed  to  be  void, 
yet  if  the  ward,  after  he  attain  his  age,  so  far  assents  to  the 
terms  of  the  lease  as  to  let  the  tenant  spend  his  labor  and  money 
on  the  land,  he  shall  not  afterwards  avoid  it  by  entry.  In  this 
case  there  is  evidence  of  the  defendant's  recognition  and  assent 
in  his  issuing  notice  to  quit,  according  to  the  'terms  of  the  lease, 
and  that  long  after  he  came  of  age.  This  evidence  must  be  left 
to  the  jury. 

2.  As  to  the  second  reason.  If  a  man  rent  lands  for  two 
years  he  has  a  right  to  two  courses  of  crops ;  and  though  one 
should  not  be  taken  off  the  land  at  the  expiration  of  the  term 
(as  must  ne*cessarily  be  the  case),  yet  he  has  a  right  without 
special  covenants  to  enter  and  take  the  same  when  it  is  ripe.  If 
he  enters  in  the  spring,  as  is  the  custom,  and  then  sow  his  spring 
crop  for  that  year,  and  in  the  autumn  his  winter  grain,  and  so 
the  next  year  also,  though  the  winter  grain  of  the  second  year 
will  not  be  ripe  till  July,  long  after  the  expiration  of  his  lease, 
yet  he  shall  have  a  right' to  enter  and  take  it.  But  if,  upon  the 
presumption  of  right,  he  should  in  the  third  spring — say  in 
March,  just  before  the  expiration  of  his  lease — sow  a  summer 
crop,  as  oats  or  barley,  he  cannot  enter  to  take  this,  because  it 
would  be  giving  him  the  product  of  three  years  instead  of  two. 
Upon  general  principles,  therefore,  these  plaintiffs  would  not 
have  been  entitled  to  the  crops  in  question. 

But  in  this  case  there  are  special  provisions  in  the  lease  which, 
I  think,  may  be  construed  so  as  to  give  the  liberty  cf  putting 
in  oats  in  the  spring  of  1815  instead  of  the  rye,  which  ho  might, 
of  common  right,  have  sowed  the  preceding  autumn ;  and  being 
capable  of  this  construction  I  shall  leave  it  to  the  jury  to  con- 
sider whether,  from  the  common  custom  of  the  country  and  from 

*461 


2  SOUTH.]          FEBRUARY  TERM,  1819.  541 


Van  Doren  v  Everitt 


the  expressions  contained  in  the  lease,  this  was  not  the  true  in- 
tent of  the  parties. 

Both  these  questions,  therefore,  must  be  left  for  the  considera- 
tion of  the  jury,  taking  the  law  as  I  have  now  stated  it,  and  the 
fact  as  they  shall  find  it  to  be  made  out  by  the  evidence. 

The  defendant  then  called  sundry  witnesses  as  to  the  time  of 
sowing  the  oats  and  as  to  the  quantity  and  value  thereof.  The 
cause  was  then  submitted  to  the  jury  after  a  few  words  by  way 
of  charge,  recapitulating  what  had  before  been  said  on  the 
motion  for  nonsuit,  and  there  was  a  verdict  for  plaintiffs  for 
$72.50,  with  which  I  saw  no  reason  to  be  dissatisfied. 

The  lease  let  the  farm  "  for  the  term  of  two  years  from  the 
first  of  April,  1813,"  for  the  rent  of  $65  per  year,  to  be  paid  on 
the  first  of  April  each  year ;  and  among  other  conditions  was 
one  in  the  following  words :  "  The  said  Vandorens,  the  first 
year,  are  to  plant  the  field  next  to  the  barn  southward,  and  to 
sow  the  same  with  rye  or  oats ;  and  to  sow  the  corn-ground  next 
the  woods  with  oats  and  clover-seed — which  clover-seed  said 
Doughty  and  Everitt  are  to  find.  The  second  year  said  Vando- 
rens are  to  plant  the  young  orchard  back  of  the  house,  together 
with  the  field  next  adjoining  westward,  and  to  sow  the  same 
with  rye  or  oats  and  clover,  if  there  is  any  to  gather  on  the 
place." 

*The  following  reasons  for  setting  aside  the  verdict  and  grant- 
ing new  trial  were  filed  : 

1.  Because  the  court  refused  to  nonsuit  the  plaintiffs.  2.  Be- 
cause the  construction  of  the  lease  was  submitted  to  the  jury 
instead  of  being  decided  by  the  court.  3.  Because  the  court 
erred  in  the  charge  to  the  jury.  4.  Because  the  verdict  was 
against  law.  5.  Because  the  verdict  was  against  the  evidence. 

Ewing,  in  support  of  the  rule. 
Hardenbergh,  contra. 

KlRKPATRICK,  C.  J. 

Upon  this  case  I  observe — 1.  A  guardian  appointed  by  the 
orphans  court  in  one  of  our  counties,  under  the  statute,  supplies 

*462 


542  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Van  Doren  v.  Everitt. 


the  place  of  both  a  guardian  for  nurture  and  a  guardian  in  soc- 
age  in  the  ancient  law.  Such  guardian  has  not  only  the  custody 
of  the  person  but  also  the  care  of  the  land,  (a)  This,  it  is  pre- 
sumed, will  not  be  questioned. 

A  guardian  in  socage,  then,  has  not  only  the  care  of  the  land 
but  also  an  interest  in  it.  He  is  said  to  be  Dominus  pro  tempore, 
and  to  have  the  seizin  of  the  land,  una  cum  exitibus.  He  may 
let  it  for  years  and  the  lessee  may  have  an  ejectione  firmae  there- 
upon. This  is  settled  in  the  case  of  Shoplane  v.  Royderer,  Oro. 
Jac.  55,  99. 

Such  guardian,  then,  not  having  a  bare  authority  only,  but 
also  an  interest  in  the  land,  he  may  make  leases  thereof  as  any 
other  having"  interest  may  do  ;  and  if  he  make  a  lease  to  continue 
beyond  his  guardianship  it  is  not  absolutely  void  upon  the  infant 
coming  of  age,  but  voidable  only.  And  consequently  the  infant 
may,  at  that  time,  either  affirm  the  lease  or  avoid  it  at  his  pleas- 
ure. (6)  If  he  accept  of  rent  or  do  any  other  act  or  acts,  show- 
ing his  assent  thereto,  it  is  construed  to  be  an  affirmance.  In 
one  case  the  infant,  after  his  age,  saying  to  the  tenant,  God  give 
you  joy  of  it,  was  held  enough  to  confirm  the  lease.  Bacon 
"Leases"  &c.  19. 

2.  It  is  readily  admitted  that  according  to  the  strictness  of  the 
ancient  law  as  laid  down  by  Littleton  in  section  68,  if  the  lessee, 
for  years  or  other  term  certain,  had  sown  the  land,  and  the  term 
had  expired  before  the  crop  was  ripe,  he  could  not  enter  to  reap 
it  and  take  it  away.  It  was  said  to  be  his  own  folly  to  sow. 

But  then,  this  rule,  even  in  England,  admits  of  exceptions, 
arising  from  the  custom  of  the  country  ;  and  such  custom,  too, 
*has  been  adjudged  to  be  good  and  reasonable,  and  that  whether 
the  lease  were  by  deed  or  by  parol  only. 

In  this  state  I  have  always  understood  it  to  be  the  universal 

(v.)  State  v.  Cheeseman,  ante  445 ;  Ten  Brook  v.  McColm,  7  Hal.  97 ;  Matter 
of  Van  Houten,  2  Gr.  Ch.  230. 

(b)  Snook  v.  Sutton,  5  Hal.  133 ;  Williams  v.  Mabee,  8  Hal.  Ch.  500;  Farley 
v.  Woodburn,  2  Stock.  96;  Porch  v.  Fries,  3  C.  E.  Gr.  204;  see  Antonidas  v. 
Walling,  3  Gr.  Ch.  42;  Todd  v.  Jackson,  2  Dutch.  526;  Rockwell  v.  Morgan,  t 
Beas.  384  ;  Ownes  v.  Ownes,  8  C.  E.  Gr.  60. 

*463 


2  SOUTH.]          FEBRUARY  TERM,  1819.  643 


Van  Doren  t>.  Everitt. 


custom,  and  therefore  the  settled  law,  that  the  tenant,  after  the 
expiration  of  his  term,  should  have  liberty  to  enter,  cut  and  carry 
away  his  way-going  crop,  as  it  is  called,  that  is,  all  the  grain 
which  he  had  sown,  but  which  was  not  then  yet  ripe,  (a)  And 
what  can  possibly  be  more  reasonable  ?  Here  leases  are  usually 
from  year  to  year,  from  April  to  April.  Shall  the  lessee  have, 
for  his  year,  the  benefit  of  the  spring  crop  only  and  be  deprived 
of  the  winter  crop,  which  is  by  far  the  most  important  ? 

It  may  be  said  that  he  ought  to  guard  himself  by  covenants. 
It  is  true  he  may  do  so.  But  still,  the  very  essence  of  the  con- 
tract is  that  he  shall  have  one  year's  course  of  crops.  He  pays 
a  year's  value,  he  bestows  a  year's  labor,  he  must  sow  in  its  sea- 
son or  not  at  all,  he  must  eat  in  the  winter  as  well  as  in  the  sum- 
mer. The  very  nature  of  the  thing  shows  that  he  is  to  have  the 
successive  crops  of  the  year.  Shall  the  tenant  be  deprived,  then, 
of  the  substantial  benefits  of  his  lease,  unless  he  shall  fortify 
himself  with  covenants  of  entry? 

I  have  always  understood  the  universal  custom  of  the  country 
to  be  otherwise,  as  well  as  the  course  of  decision  in  all  the  courts. 
Indeed,  the  matter  appeared  to  me  to  be  so  well  settled  that  I 
was  surprised  to  hear  it  even  made  a  question. 

But  besides,  in  this  case,  there  is  a  particular  stipulation  con- 
tained in  the  lease  itself,  "  that  the  plaintiffs,  in  the  first  year, 
are  to  plant  the  field  next  the  barn,  southward,  and  sow  the  same 
with  rye  or  oats,  and  to  sow  the  corn  ground  next  the  woods  with 
oats  and  clover-seed ;  and  that,  in  the  second  year,  they  are  to 
plant  the  young  orchard  back  of  the  house  together  with  the  field 
next  adjoining,  westward,  and  to  sow  the  same  with  rye  or  oats 
and  clover." 

The  lease  was  for  two  years,  beginning  on  the  1st  of  April, 
1813.  It  is  expressly  stipulated  that  the  tenants  should  have  the 
privilege  of  sowing  two  crops  of  rye  ;  the  crop  of  the  last  year 
could  not  possibly  be  reaped  before  the  expiration  of  the  lease. 

(a)  Debow  v.  CW/az,  5  Hal.  1S8  ;  HmoeU  v.  SchmcJe,  4  Zab.  89;  Smith  v. 
Clayton,  5  Dutch.  S57  ;  see  The  Society  <tc.  v.  Haight,  Sax.  393  ;  Hendricluon  v. 
Ivin*,  Sea:.  563. 


544  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Van  Doren  v.  Everitt. 


This  stipulation  of  itself,  therefore,  amounts  to  a  covenant  that 
they  shall  enter  and  reap  it  after  that  time,  unless  we  can  suppose 
they  were  to  sow  it  for  the  benefit  of  the  landlord,  and  not  for 
their  own,  a  supposition  too  absurd  to  be  seriously  maintained. 

*3.  The  construction  of  the  words  of  the  lease  which,  it  was 
said,  gave  permission  to  the  tenants,  in  the  second  year,  to  sub- 
stitute one  crop  in  the  place  of  another,  that  is,  instead  of  sow- 
ing rye  in  the  autumn  to  sow  oats  in  the  following  spring,  could 
not  be  made  with  certainty  and  precision  in  any  other  way  than 
by  referring  them  to  the  course  of  husbandry  and  the  custom 
among  farmers  in  that  particular  part  of  the  country.  It  was 
stoutly  maintained  that  the  sowing  of  the  corn-ground  with  oats 
in  the  second  year  must  be  intended  a  sowing  with  winter  oats  in 
the  autumn,  and  not  with  the  common  oats  in  the  spring,  when 
the  lease  must  have  expired,  or  nearly  so.  This  winter  oats  was 
altogether  a  new  thing  to  me,  but  I  thought  I  had  heard  of  oats 
being  sown  in  the  autumn  or  winter  in  England,  and  therefore 
did  not  choose  to  decide  the  matter  conclusively  myself,  but  rather 
after  having  first  stated  the  general  import  of  the  words  when 
applied  to  the  different  positions  taken  by  the  parties,  to  leave  it 
to  the  jury,  who  were  perfectly  acquainted  with  the  nature  and 
succession  of  crops,  to  apply  them  according  to  the  subject-mat- 
ter, and  by  that  means  to  find  the  true  meaning  of  the  instru- 
ment. The  meaning  of  the  words,  simply  considered,  was  clear 
enough ;  the  state  of  things  upon  which  they  were  to  operate 
was  the  difficulty,  and  this  was  a  matter  of  fact  to  be  proved  by 
the  evidence  and  to  be  found  by  the  jury.  And  besides  all  this, 
as  to  the  substance  of  the  thing,  it  could  make  no  difference  to 
the  landlord  whether  these  tenants  entered  to  reap  their  crop  of 
oats  or  their  crop  of  rye. 

Upon  a  review  of  the  whole  matter  I  am  satisfied  the  law  was 
correctly  declared,  and  the  verdict  justly  found.    And  therefore — 
Let  the  rule  to  show  cause  be  set  aside. 

ROSSELL,  J. 

From  the  report  of  this  case  by  the  chief-justice  it  appears  that 
Benjamin  Doughty,  guardian  to  Thomas  S.  Everitt  and  his  sister, 

*464 


2  SOUTH.]  FEBRUARY  TERM,  1819.  545 


Van  Doren  c.  Everilt 


leased  on  the  10th  of  February,  1813,  the  farm  of  his  wards 
for  two  years  from  the  1st  of  April,  1813,  to  the  plaintiffs.  By 
special  provision  in  the  said  lease  the  Van  Dorens  were  entitled 
to  plant  certain  fields,  therein  described,  and  sow  the  same  with 
a  crop  of  rye  or  oats  ;  that  in  July,  1814,  the  defendant,  Everitt, 
attained  the  age  of  twenty-one  years,  the  Van  Dorens  then  being 
in  possession  of  the  premises  under  the  lease.  Everitt  gave  them 
notice  in  the  usual  form  to  quit  at  the  *expiration  thereof;  that 
on  the  last  days  of  March,  1815,  or  on  the  first  days  of  April, 
or  partly  on  all  these  days,  the  plaintiffs  (Van  Dorens)  sowed  a 
part  of  their  lands  with  oats,  which  at  the  time  of  harvest  were 
cut  and  carried  away  by  the  defendant.  On  the  trial  a  motion 
was  made  for  a  nonsuit,  which  was  overruled,  and  the  jury  gave 
a  verdict  for  the  plaintiffs  for  $72.50,  with  which  the  judge  was 
satisfied.  There  is  now  a  motion  for  a  new  trial,  with  an  allega- 
tion that  the  chief-justice  refused  to  nonsuit  the  plaintiffs,  and 
left  the  construction  of  the  law  to  the  jury,  erred  in  his  charge  to 
them,  and  that  they  gave  a  verdict  contrary  to  law  and  evidence. 

On  examining  the  reasons  of  the  chief-justice  for  refusing  to 
nonsuit  the  plaintiffs,  and  his  charge  to  the  jury  on  the  law  and 
the  evidence,  I  consider  them  well  founded  in  law  and  equity. 
The  lease  from  the  guardian,  who  had  the  sole  charge  of  the 
estate  of  his  wards,  was  certainly  good  until  those  wards,  or  one 
of  them,  should  arrive  to  full  age ;  .whether  it  should  be  so  for 
the  remainder  of  the  term  depended  on  him  who  was  entitled 
to  the  estate  ;  should  he  receive  the  rent  after  he  came  of  age,  it 
would  be  a  recognition  of  the  lease,  and  he  shall  be  bound  by  it. 
Plow.  lf,18.  From  the  authority  and  interest  which  the  policy  of 
the  law  hath  invested  guardians  with,  a  guardian  may  do 
.several  acts  which  will  bind  the  infant,  such  as  making  leases. 
"  And  the  infant,  when  he  comes  of  age,  may,  by  acceptance  of 
rent  or  other  act,  if  he  thinks  proper,  make  such  leases  good  ami 
unavoidable."  2  Bac.  Abr.  682,  683. 

As  to  the  lease  itself.     There  was  a  special  provision  that  the 

lessees  might  sow  certain  fields  with  rye  or  oats.    They  cho>e  the 

latter,  and  although,  by  the  terms  of  the  lease,  he  was  to  give 

possession  of  the  farm  to  the  guardian  on  the  1st  day  of  A  pi  il, 

*465  35 


546  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Olden  v.  Hallet. 


1815,  common  sense  would  forbid  us  to  suppose,  for  a  moment, 
that  this  surrender  of  possession  of  the  farm  included  the  fields 
on  which  his  crop  was  growing  or  to  grow ;  of  these  he  held  a 
virtual  possession  until  this  crop  was  harvested ;  and  whether  he 
worked  in  perfecting  the  intention  of  the  lessor  as  well  as  his 
own,  agreeably  to  the  manifest  meaning  of  the  lease,  before  or 
after  the  1st  of  April  and  before  he  had  delivered  possession  of 
said  fields,  ought  not  nor  could  it  change  the  situation  of  the 
parties.  One  had,  for  a  valuable  consideration,  leased  to  the 
tenants  those  fields  for  his  benefit,  and  he  was  entitled  to  it.  The 
land*lord  would  neither  gain  nor  lose  by  the  circumstance  of 
the  tenants  not  having  fully  completed  putting  in  their  crop 
until  after  the  day  they  were  to  deliver  possession  of  the  rest  of 
the  farm.  Thus  thinking,  I  am  of  opinion  that  the  postea  should 
be  delivered  to  the  plaintiffs. 


GILES  W.  OLDEN  and  HART  OLDEN,  executors  of  SAMUEL 
OLDEN,  deceased,  v.  RICHARD  S.  HALLET. 

Insolvent  laws  of  New  York  discharging  the  debt,  unconstitutional. 
In  debt — on  demurrer  &c. 

This  action  was  commenced  by  attachment  against  the  prop- 
erty of  the  defendant,  directed  to  the  sherifi  of  Somerset,  on 
which  he  seized  a  quantity  of  hides  or  unfinished  leather,  belong- 
ing to  the  defendant,  in  the  hands  of  Elisha  Clark.  The 
defendant  filed  special  bail. 

The  declaration  has  two  counts. 

1.  On  a  bond  in  the  penal  sum  of  £1,000,  New  York  money, 
given  by  the  defendant  and  one  Jeremiah  Hallet,  deceased,  whom 
the  plaintiff  has  survived,  to  Samuel  Olden,  dated  the  1st  of 
May,  1797,  conditioned  for  £500  with  lawful  interest. 

2.  On  a  judgment  obtained  against  the  defendant  on  that 

*466 


2  SOUTH.]  FEBRUARY  TERM,  1819.  547 


Olden  v.  Hallet. 


bond,  as  survivor,  at  the  suit  of  the  plaintiffs,  as  executors  of 
Samuel  Olden  in  the  supreme  court  of  the  state  of  New  York, 
in  the  term  of  August,  1804. 

The  defendant  pleaded  seven  pleas. 

To  the  first  count — 

1.  The  judgment  obtained  in  the  state  of  New  York  stated 
in  the  plaintiffs'  declaration  j  the  plea  concludes  with  a  verifica- 
tion. 

2.  The  same  plea  concluding  to  the  record  with  a  prout  paid 
per  recordum  &c. 

To  these  first  two  pleas  the  plaintiffs  demurred  and  the  defend- 
ant joined  in  demurrer. 
To  the  second  count — 

3.  Nul  tid  record.     The  plaintiffs  reply  that  there  is  such  a 
record,  concluding  to  the  record  in  the  usual  form. 

*4.  Nil  detinet,  issue  tendered  to  the  country  and  joined  by  the 
plaintiffs. 

5.  A  statute  of  the  state  of  New  York  called  an  insolvent 
law  and  a  discharge  of  all  prior  debts  due  from  the  defendant, 
made  by  the  recorder  of  the  city  of  New  York  on  the  20th  of 
June,  1807.     This  statute  was  passed  on  the  3d  of  April,  1801, 
and  authorizes  the  recorder,  on  the  petition  of  three-fourths  in 
value  of  the  creditors  and  upon  the  debtor  making  an  assign- 
ment  of  his  estate  and  complying  with  the  other  provisions  of 
the  act,  to  discharge  any  insolvent  debtor  from  his  debts,  whether 
he  was  imprisoned  or  not,  and  bars  all  future  actions  for  the 
.recovery  &c.     The  plea  avers  that  the  defendant  was  an  insol- 
vent debtor  within   the   act,  and   had   been   in   custody,  upon 
execution,  for  more  than  sixty  days,  and  that  having  complied 
with  all  the  directions  of  the  act  and  been  duly  discharged,  he 
pleads  the  discharge  in  bar  of  this  action. 

6.  Same  in  substance  as  the  last,  but  sets  out  the  discharge  at 
large. 

To  these  last  two  pleas  the  plaintiffs  demurred  and  the  defend- 
ant joined  in  demurrer. 

7.  That  the  plaintiffs  sued  out  a  ca.  sa.  upon  the  judgment, 
upon  which  the  defendant  was  arrested  and  detained  until  the 

*467 


548  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Olden  v.  Hal  let. 


20th  of  June,  1807,  when  he  was  discharged  under  the  insolvent 
law  &c. 

To  this  plea  the  plaintiffs  demurred  and  the  defendant  joined 
in  demurrer. 

The  cause  was  argued  by  R.  Stockton,  for  the  plaintiffs,  and 
Ewing,  for  defendant. 

KlRKPATRICK,  C.  J. 

In  this  case  there  was  a  bond  given  in  New  Jersey ;  a  judg- 
ment entered  upon  that  bond  in  the  supreme  court  of  the  state- 
of  New  York ;  a  ca.  sa.  sued  out  on  that  judgment;  the  de- 
fendant taken  and  imprisoned  thereupon  and  afterwards  dis- 
charged under  the  act  of  the  said  state  of  New  York,  entitled 
"  An  act  for  giving  relief  in  cases  of  insolvency,"  passed  April 
3d,  1801. 

After  this  discharge  there  was  an  attachment  taken  out  here,, 
upon  which  the  defendant  appeared  and  gave  special  bail. 

The  declaration  contains  two  counts,  one  upon  the  bond  and 
another  upon  the  judgment  in  New  York.  To  the  first  of  these 
*there  are  two  pleas  setting  up  the  said  judgment  in  New  York 
as  an  extinguishment  of  the  bond ;  the  first  concluding  with  a 
general  verification  and  the  second  with  a  verification  prout  patet 
by  a  copy  of  the  record  of  that  judgment  authenticated  accord- 
ing to  the  act  of  congress  &c.  And  to  these  two  pleas  there  are 
general  demurrers  and  joinders  in  demurrer. 

To  the  second  count  in  the  declaration  there  are  five  pleas^ 
First.  Nul  tiel  record.  Secondly.  Non  detinet.  Thirdly.  A  dis- 
charge under  the  act  of  the  state  of  New  York.  Fourthly.  The 
same,  setting  out  the  discharge  particularly.  And  fifthly.  The 
imprisonment  of  the  defendant  upon  a  ca.  sa.  on  this  judgment 
and  his  discharge  therefrom. 

The  counsel  have  not  thought  proper  to  go  into  an  argument, 
upon  the  pleas  to  the  first  count;  but  as  the  demurrers  are 
general,  they  must  be  intended  to  be  taken  to  matter  of  sub- 
stance and  not  to  matter  of  form ;  for  though  the  pleas  should 
be  thought  to  be  informal,  concluding  with  a  general  verification 

*468 


SouTrf.]          FEBRUARY  TERM,  1819.  649 


Ohlen  r.  Hal  let. 


and  not  with  a  proui  patet  per  recordum,  or  in  other  similar 
respect  (which  I  by  no  means  say  is  the  case),  yet  such  iu for- 
mality is  cured  by  the  act  respecting  amendments  and  jeofails. 
I  see  no  ground,  therefore,  upon  which  they  can  be  taken,  unless 
it  be  that  the  judgment  in  the  state  of  New  York  did  not  oj>er- 
^te  as  an  extinguishment  of  this  bond  debt,  and  that,  therefore, 
the  bond  still  remains  in  its  full  force  and  may  be  made  the 
foundation  of  an  action  here. 

That  the  judgment  operated  as  an  extinguishment  of  the 
bond  debt  in  the  state  of  New  York  cannot  for  a  moment  be 
doubted,  (a)  Can  the  party,  then,  by  coming  into  this  state  again 
revive  it  and  set  it  up?  Or  will  it  be  said  that  a  judgment  in  the 
state  of  New  York  is,  as  to  us,  a  mere  matter  in  pais,  which,  in- 
deed, may  be  the  foundation  of  an  assumpsit  or  of  debt,  as  upon  a 
simple  contract — the  regularity,  justice  and  foundation  of  which 
may  be  inquired  of  here  by  a  jury  as  other  matters  of  fact  are 
inquired  of ;  but  that  it  cannot  be  pleaded  or  taken  notice  of  as 
•«  judgment,  or  have  the  effects  and  operation  of  a  judgment  f 
If  this  be  the  ground  upon  which  the  demurrers  are  taken,  and 
I  can  really  see  no  other,  I  am  inclined  to  think  they  are  not 
good. 

The  clause  of  the  constitution  of  the  United  States  on  this 
.subject,  and  the  act  of  congress  to  carry  that  clause  into  effect, 
notwithstanding  the  very  respectable  opinions  to  the  contrary 
*rendered  in  some  of  our  neighboring  states,  I  think  place  such 
judgments  upon  a  different  footing  from  what  are  commonly 
called  foreign  judgments  and  give  them  all  the  force  and  effect 
of  judgments  in  every  other  state.  (6)  To  say  less  of  that  clause 
-and  of  the  act  consequent  thereupon,  would  be  to  nullify  them 
-altogether.  But  as  the  counsel  have  not  argued  this  question  so 

(a)  Prett  v.  Vanarsdalm,  6  Hal.  194;  Barnes  v.  Gibbs,  S  Vr.  S17 ;  Cm  T. 
MtuiaJU,  7  Vr.  390. 

(6)  Moulin  v.  Insurance  Co.,  4  Zab.  MB;  GulicJe  v.  Loder,  1  Or.  68;  Doug- 
lass v.  Steward,  Penn.  *710 ;  Lanning  v.  Shute,  post  778;  Qavit  v.  Snowhill,  * 
Dutch.  76;  Robert  v.  Hodges,  1  C.  E.  Or.  SOO ;  see  Davis  v.  Headley,  7  C.  Ef 
<?r.  116;  Oilman  v.  Lewis,  4  Zab.  246;  Maekay  ads.  Gordon,  5  Vr.  *86. 

*469 


550  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Olden  v.  Hallet. 


neither  will  I  argue  it,  but  rather  content  myself  for  the  present 
with  saying  that  I  think  these  demurrers  must  be  overruled. 

The  real  defence  in  the  cause  is  the  discharge  under  the  above- 
recited  act  of  the  state  of  New  York.  And  the  demurrers  to  the 
third,  fourth  and  fifth  pleas,  pleaded  to  the  second  count  in  t'he 
declaration,  bring  up  the  validity  of  that  discharge.  And  this, 
again  depends  upon  the  constitutionality  of  the  act  itself. 

It  has  heretofore  been  decided  in  this  court,  especially  in  the 
case  of  Vdnniixem  and  Clark  v.  Hazdhurst,  that  by  the  constitu- 
tion of  the  United  States  congress  has  the  exclusive  power  of 
making  laws  upon  the  subject  of  bankruptcies  ;  and  that  all  laws- 
which  discharge  the  debtor  from  his  debts,  without  payment,  are 
bankrupt  laws,  in  the  true  meaning  of  that  instrument,  (a)  This- 
act  of  the  state  of  New  York,  therefore,  being  a  law  which  dis- 
charges the  debtor  from  his  debts,  without  payment,  is  a  bank- 
rupt law,  and,  as  such,  unconstitutional  and  void. 

Again.  It  has  been  decided  in  this  court  that  a  law  discharg- 
ing a  debtor  from  his  debts,  without  payment,  if  not  a  bankrupt, 
law,  is  a  law  impairing  the  obligation  of  contracts,  the  power  of 
making  which  is,  by  the  said  constitution,  expressly  forbidden 
to  the  individual  states.  If  it  should  be  thought,  then,  that  this- 
act  of  the  state  of  New  York  is  not  a  bankrupt  law,  it  is  a  law 
impairing  the  obligation  of  contracts,  and,  as  such,  is  unconstitu- 
tional and  void. 

I  am  of  opinion,  therefore,  that  the  demurrers  to  the  third,, 
fourth  and  fifth  pleas  pleaded  to  the  second  count  in  the  declara- 
tion, are  well  taken,  and  therefore  that  the  said  pleas  be  over- 
ruled. 

ROSSELL  and  SOUTHARD,  JJ.,  concurred  in  overruling  the 
said  pleas. 

(a)  1  South.  192 ;  Ballanline  v.  Haight,  1  Harr.  196;  Conkling  v.  Haight,  1 
Harr.  %01 ;  Leggett  v.  Barton,  11  Vr.  85. 


2  SOUTH.]  FEBRUARY  TERM,  1819.  551 


Den  v.  Moore. 


*JOHN  DEN,  ex  dem.  THE  STATE  BANK  AT  NEW  BRUNSWICK, 
v.  RYNEAR  MOORE. 

In  ejectment,  where  plaintiff  claims  under  a  mortgage,  defendant  may  show 
that  he  is  insane,  and  that  the  bond  and  mortgage  were  fraudulently  obtained 
and  given  to  suppress  a  prosecution  for  forgery ;  in  such  case  a  verdict  with 
which  the  judge  is  satisfied  not  disturbed. 


In  ejectment. 

This  case  was  argued  on  a  rule  to  show  cause  why  a  new  trial 
should  not  be  granted. 

The  action  was  tried  at  the  Somerset  circuit,  in  April,  1818, 
and  at  the  succeeding  term  the  following  report  was  made  by  the 
chief-justice. 

After  confession  of  lease,  entry  and  ouster  the  plaintiff  gave  in 
evidence  a  mortgage  of  the  lands  in  question,  dated  August  10th, 
1813,  made  by  Moore,  the  defendant,  to  the  bank,  to  secure  the 
payment  of  a  bond  of  $5,450.52,  with  interest  &c. ;  he  gave  in 
evidence,  also,  the  said  bond,  and  the  possession  of  the  defendant 
being  admitted,  he  then  rested. 

The  defendant,  then,  by  way  of  defence,  offered  to  prove — 

1.  That  one  John  C.  Moore,  the  son  of  the  said  defendant,  had 
discounted  at  the  bank  seven  promissory  notes  on  which  the  name 
of  the  defendant,  either  as  endorser  or  drawer,  and  also  the  name 
of  one  John  Ryder,  the  father-in-law  of  the  said  John  C.  Moore ; 
that  this  bond  and  mortgage  were  taken  as  collateral  security  for 
the  payment  of  these  notes ;  that  at  the  time  of  taking  the  same 
the  -bank  had  been  informed  and  well  knew  that  the  name  of  the 
said  defendant,,  as  well  as  of  the  said  John  Ryder  on  the  said 
notes,  was  forged,  and  not  genuine  and  true ;  that  at  the  time  of 
this  transaction,  and  long  before  and  after,  the  said  defendant 
had  labored  under  a  derangement  of  mind  which  rendered  him 
incapable  of  transacting  business  with  discretion  and  understand- 
ing ;  that  under  these  circumstances  the  said  bank,  by  very  extra- 
ordinary measures  (particularly  stated),  had  procured  this  bond 

*470 


552  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Moore. 


and  mortgage,  and  that  therefore  it  ought  to  be  considered  as 
void. 

2.  That  the  said  bank  had  caused  the  said  John  C.  Moore  to 
be  arrested  for  forgery  in  endorsing  the  name  of  the  said  defend- 
ant and  John  Ryder  on  the  said  notes,  or  in  passing  them,  know- 
ing the  said  names  to  be  forged ;  that  this  bond  and  mortgage 
were  taken  from  the  father  as  a  composition  for  the  crime  of  the 
son,  and  that  the  son  was  thereupon  discharged. 

To  the  admission  of  this  evidence  it  was  objected — 1.  That 
*the  court  cannot  go  into  the  consideration  of  the  bond  and 
mortgage,  and  inquire  for  what  they  were  given.  2.  That  it  is  not 
admissible  for  a  man  to  stultify  himself  in  order  to  avoid  his 
deed.  And  3.  That  the  bank  existing  in  contemplation  of  law 
only  cannot  be  guilty  of  crime,  such  as  the  compounding  of 
offences  &c.  But  after  stating  the  law  upon  these  questions  the 
court  overruled  the  objection  and  admitted  the  witness  to  be 
sworn.  Andrew  Parsons,  the  witness,  was  then  sworn,  and  after 
inspecting  the  seven  notes,  said,  in  substance,  that  he  was  a  clerk 
in  the  bank  at  the  time  of  this  transaction,  and  that  he  under- 
stood that  the  bond  and  mortgage  in  question  were  taken  as  pay- 
ment for  the  same,  that  some  of  the  officers  of  the  bank  had  en- 
tertained suspicions  respecting  the  fairness  of  these  notes,  so  far 
as  related  to  the  name  of  John  Ryder ;  that  he  was  sent  to  Ry- 
der to  make  inquiry  concerning  them  ;  that  he  exhibited  to  him 
the  notes  on  which  his  name  was,  and  that  Ryder  denied  the 
writing ;  that  at  his  return  a  special  meeting  of  the  directors  was 
called ;  John  C.  Moore  was  taken  into  custody  on  a  warrant  and 
brought  before  them,  and  being  informed  that  Ryder  had  denied 
his  name,  he  said  if  he  could  see  Ryder  he  would  acknowledge 
the  notes ;  that  he,  the  witness,  was  again  sent  to  Ryder's,  in 
company  with  one  of  the  directors,  on  the  same  business,  but 
that  Ryder  again  denied  his  name ;  that  after  his  return  there 
was  another  meeting  of  the  board ;  that  he  was  then  sent,  in 
company  with  James  C.  Van  Dike,  one  of  the  said  directors, 
and  the  said  John  C.  Moore,  in  the  custody  of  the  constable,  to 
the  defendant's  house,  which  was  five  or  six  miles  distant,  to  see 
whether  the  defendant  would  acknowledge  the  notes  ;  that  they 

*471 


2  SOUTH.]  FEBRUARY  TERM,  1819.  553 


Den  v  Moore. 


set  off  on  this  expedition  sometime  after  twelve  o'clock  at  night 
and  got  there  a  little  before  daylight ;  that  when  they  approached 
the  house  John  C.  Moore  requested  the  liberty  of  entering  alone, 
that  he  might  prepare  his  father,  as  he  was  in  a  low  state  of 
health ;  that  this  liberty  was  granted  to  him ;  that  he  did  enter 
alone  and  continued  there  some  considerable  time,  then  came  to 
the  door  and  told  them  he  believed  it  would  do  now,  his  father 
would  acknowledge  them,  and  then  they  all  entered  the  house  ;  that 
the  defendant  appeared  to  have  just  risen  from  his  bed,  was  very 
silent  and  said  little  or  nothing ;  that  the  witness  told  over  to 
him  the  notes  on  which  his  name  was  (I  think  four  in  number), 
and  asked  him  if  he  acknowledged  the  signature,  and  that  he 
said  to  each  "  yes ; "  that  *he  then  presented  to  him  the  other 
three  of  the  said  seven  notes  which  had  not  his  name  on  them, 
and  he  endorsed  them  in  his  presence  ;  that  he  has  seen  the  de- 
fendant write  several  times  and  believes  that  his  name  on  the 
four  notes  first  mentioned  to  him  and  acknowledged  by  him  was 
not  his  handwriting ;  that  when  he  presented  to  him  the  three 
notes  last  mentioned  for  his  endorsement,  he  did  not  inform  him, 
the  defendant,  that  Ryder  had  denied  his  name  on  the  same  or 
that  it  was  supposed  to  be  a  forgery  ;  that  upon  these  acknowledg- 
ments and  endorsements  being  made  John  C.  Moore  was  dis- 
charged, as  he  believed,  from  the  custody  of  the  constable, 
permitted  to  go  home,  and  no  further  steps  taken  concerning 
him.  He  further  stated  that  Ryder  came  to  the  bank  (I  think) 
the  next  morning  and  acknowledged  his  hand  on  (I  believe)  four 
of  the  said  notes,  but  that  he,  the  witness,  did  not  believe  that 
the  name  acknowledged  was  his  handwriting,  nor  did  he  believe 
so  when  he  exhibited  them  to  Rynear  Moore,  the  defendant.  He 
further  stated  that  he  had  no  conversation  with  the  defendant 
about  the  liberation  of  his  son,  nor  had  he  any  authority  from 
the  bank  to  make  any  proposals  concerning  it  j.that  this  trans- 
action at  Moore's  was  |?etween  the  7th  and  loth  of  August,  and 
that  the  bond  and  mortgage  were  taken  some  days  afterwards. 
He  then  stated  that  when  the  notes  became  due  the  bank  went 
on  to  protest  them,  give  notice  of  non-payment  &c.,  as  usual, 
the  bond  and  mortgage  notwithstanding,  and  that  an  action  had 

*472 


554  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Moore. 


been  brought  on  them  against  the  defendant  and  a  verdict  ren- 
dered in  his  favor  before  this  ejectment  was  instituted. 

It  was  then  moved  to  overrule  this  whole  testimony  as  unlaw- 
ful and  irrelevant  in  the  defendant's  defence,  but  the  court  over- 
ruled the  motion. 

Other  witnesses  were  then  called  to  disprove  the  handwriting 
of  the  defendant  on  the  four  notes  above  mentioned,  and  admitted 
and  sworn. 

The  defendant  then  called  Dr.  William  M'Kissack  to  prove 
the  state  of  the  defendant's  mind  during  the  summer  and  au- 
tumn of  the  year  1813,  which  was  the  year  in  which  this  trans- 
action took  place.  This  was  objected  to,  on  the  ground  that  the 
witness  ought  to  be  confined  in  his  testimony  to  the  very  day 
and  time  of  the  making  of  the  bond  and  mortgage,  because,  even 
admitting  a  general  state  of  lunacy,  he  may  have  had  lucid 
intervals. 

*But  by  the  court.  It  is  true  that  though  a  general  state  of 
lunacy  or  derangement  of  mind  should  be  established  to  the  sat- 
isfaction of  the  jury,  yet,  if  the  defendant  hath  had  lucid  inter- 
vals in  which  he  hath  had  the  full  exercise  of  his  rational  facul- 
ties, in  which  he  could  clearly  discern  his  rights,  his  duties  and 
his  obligations,  and  fully  understand  the  effect  of  what  he  had 
done  in  the  acknowledgment  of  these  notes,  and  of  what  he  was 
about  to  do  in  the  giving  of  this  bond  and  mortgage,  then  his 
acts  done  during  such  lucid  intervals  will  bind  him  as  effectually 
as  if  he  had  labored  under  no  such  malady.  But  then,  I  appre- 
hend it  will  be  sufficient  for  the  defendent  to  prove  the  derange- 
ment generally,  and  then  it  will  be  incumbent  on  the  plaintiff,  if 
he  would  make  advantage  of  it,  to  show  the  lucid  intervals,  (a) 

Dr.  M'Kissack  was  then  examined,  and  after  him  a  number 
of  witnesses  on  both  sides  of  the  question,  as  to  the  defendant's 
state  of  mind  about  the  time  of  this  transaction,  and  long  before 
and  after,  and  also  as  to  his  state  of  mind  on  the  day  and  at  the 
very  time  of  the  making  of  this  bond  and  mortgage. 

(a)  Whitenack  v.  Stryker,  1  Gr.  Ch.  8  ;  Den,  Trumbuli  v.  Gibbons,  2  Zab.  117  ; 
Goble  v.  Grant,  2  Gr.  Ch.  629;  Turner  v.  Cheesman,  2  McCart.  243;  Den  v. 
Clark,  5  Hal.  217 ;  Yaugrr  v.  Skinner,  1  McCart.  389;  Andress  v.  Weller,  2  Gr. 
Ch.  604;  Dixon  v.  Dixon,  7  C.  E.  Gr  93. 

*473 


2  SOUTH.]  FEBRUARY  TERM,  1819.  565 


Den  r.  Moore. 


The  evidence  was  then  summed  up  with  great  ability  on  both 
sides,  and  to  what  I  thought  a  very  intelligent  jury. 

The  questions  of  law  which  would  necessarily  present  them- 
selves in  considering  of  the  verdict  having  already  been  consid- 
ered and  resolved  in  the  course  of  the  trial,  and  the  facts  pre- 
senting themselves  to  my  mind  in  a  very  strong  point  of  view,  I 
thought  it  most  prudent  to  give  no  charge  to  the  jury. 

A  verdict  was  rendered  for  the  defendant,  and,  I  thought, 
rightly. 

In  making  out  this  case  I  have  stated  the  evidence  so  far  only 
as  appeared  to  me  to  be  necessary  to  bring  into  view  the  decisions 
of  the  court  as  to  the  admission  of  testimony,  and  the  questions 
necessarily  connected  with  it,  but  I  have  not  thought  it  necessary 
to  go  further,  as  the  court,  I  believe,  will  never  hear  an  argument 
on  the  merits  or  testimony  reported  in  this  way,  in  order  to  im- 
pugn the  verdict  of  a  jury. 

Scott  and  R.  Stockton  maintained  that  the  rule  should  be  made 
absolute.  1.  Because  the  evidence  respecting  the  consideration 
of  the  bond  and  mortgage  was  inadmissible.  Swif.  Em.  2^8 ; 
2  Johns.  177 ;  8  Johns.  375;  1  Johns.  139;  Cowp.47  ;  2  Wils. 
£75 ;  1  Bur.  396.  2.  Because  the  jury  had  before  them  no  evi- 
dence of  fraud  to  justify  their  verdict. 

*F.  Frelinghuysen  and  the  Attorney-General,  for  the  defend- 
ant, contended — 1.  That  the  consideration  was  properly  inquired 
into.  Coxe  178  ;  8  Johns.  54;  Pow.  on  Mortgages  65.  2.  That 
the  case  abundantly  proved  that  the  defendant  was  circumvented, 
and  executed  the  bond  and  mortgage  in  ignorance  of  the  facts, 
especially  of  the  forgery  of  Ryder's  name.  3.  That  justice  had 
been  done,  and  therefore  a  new  trial  ought  not  to  be  granted. 
2  mis.  306  ;  2  Salk.  644,  646;  8  Johns.  271.  4.  That  there 
was  contradictory  evidence,  and  the  judge  had  certified  that  he 
was  satisfied.  6  Bac.  664  ;  &  Str.  11J&  ;  Penn.  947. 

SOUTHARD,  J. 

I  do  not  think  it  necessary  to  recapitulate  the  facts.     They  arc 

*474 


556  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Moore. 


familiar  to  the  recollection  of  those  who  feel  an  interest  in  the 
cause. 

The  first  question  to  be  considered  is  the  competency  of  the 
evidence  respecting  the  consideration  of  the  bond  and  mortgage. 
Their  validity  was  necessary  to  justify  a  recovery  of  the  premi- 
ses by  the  plaintiff,  and  the  defendant  offered  to  prove  that  they 
were  given  under  an  agreement  to  discharge  John  C.  Moore,  who 
Avas  in  custody  under  an  accusation  of  forgery,  and  were  extorted 
from  the  defendant  by  fraud,  device  and  concealment  at  a  time 
when,  by  the  visitation  of  God,  he  was  deprived  of  his  reason,  (a) 
Three  objections  were  taken  to  this  evidence.  1.  That  a 
man  may  not  stultify  himself  in  order  to  avoid  his  deed.  2. 
That  the  bank,  who  is  lessor  of  the  plaintiffs,  as  it  exists  only  in 
contemplation  of  law,  cannot  be  guilty  of  crimes  such  as  com- 
pounding of  felony.  3.  That  the  consideration  of  the  bond  and 
mortgage  could  not  be  inquired  into.  The  chief-justice,  however, 
admitted  the  evidence. 

Upon  the  argument  of  this  rule  the  first  two  objections  were 
not  noticed,  but  the  counsel  of  the  plaintiff  relied  altogether 
upon  the  third.  That  is  the  only  one,  therefore,  to  which  I  shall 
direct  the  attention.  And  in  considering  it,  it  is  necessary  to  re- 
mark that  the  evidence  was  not  offered  to  prove  that  there  was 
no  consideration  for  the  notes  or  for  the  bond  and  mortgage, 
which  were  executed  as  collateral  security  for  the  notes.  There 
is  no  doubt  that  John  C.  Moore  received  from  the  bank  the  full 
amount  for  which  they  were  given,  and  if  his  father,  the  defend- 
ant, without  fraud  and  imposition,  executed  them  as  a  surety 
and  to  secure  the  payment,  they  were  unquestionably  valid ;  the 
*consideration  was  amply  sufficient  to  sustain  them.  We  may, 
therefore,  lay  out  of  view  all  that  was  said  in  argument,  and  all 
the  authorities  which  were  read  to  satisfy  the  court  that  a  writing 
under  seal  always  imports  in  itself  a  consideration,  and  that  it  is 
not  legal  and  proper  to  defeat  it  by  proving  that  no  consideration 
existed. 

Our  inquiry  on  this  subject  resolves  itself  into  two  questions. 

(a)  See  Price  v.  Summers,  post  578. 

*475 


2  SOUTH.]  FEBRUARY  TERM,  1819.  557 


Den  o.  Moore. 


In  an  action  of  ejectment,  where  the  plaintiff  claims  title  under 
a  mortgage,  is  it  proper  for  the  defendant  to  prove  that  the  bond 
and  mortgage  were  fraudulently  obtained  by  deception  and  con- 
cealment, or  were  given  to  suppress  a  prosecution  for  forgery 
already  commenced  ?  I  think  both  these  questions  may  be  very 
safely  answered  in  the  affirmative.  Whatever  will  avoid  the 
bond  and  mortgage  is  a  competent  defence  in  such  a  case,  and 
that  which  shows  a  fraudulent  or  illegal  consideration  will  avoid 
them.  A  bond  fraudulently  obtained  or  given  to  suppress  a 
prosecution  for  felony  never  can  be  supported  in  a  court  of  jus- 
tice. 2  Wil8.  341,  347;  1  P.  Wms.  156,  220. 

The  counsel  seemed  to  admit,  in  the  argument,  that  fraud  in 
the  execution  of  a  sealed  instrument  might  be  inquired  into,  but 
that  fraud  in  the  consideration  could  not.  (a)  I  do  not  well 
comprehend  the  grounds  of  this  distinction.  The  consideration 
and  execution  of  such  instruments  are  so  united  as  not  readily  to 
be  separated.  It  seldom,  perhaps  never,  happens  that  there  is 
fraud  in  the  one  and  not  in  the  other.  But  if  this  were  not  so 
the  law  is  not  as  was  argued.  Fraud  reaches  through  every  sub- 
ject which  it  touches ;  it  invalidates  the  consideration  as  well  as 
the  execution  of  all  contracts,  and  may  always  be  proved.  Be- 
sides, the  evidence  in  this  case  was  expressly  designed  to  show 
that  the  execution,  both  of  the  notes  and  of  the  bond  and  mort- 
gage, was  induced  by  imposition  and  fraud.  I  think,  therefore, 
that  the  court  judged  rightly  in  admitting  the  evidence.  Did  the 
jury  correctly  estimate  it  when  admitted  ?  Was  there  proof  of 
fraud? 

In  considering  this  part  of  the  case  it  is  important  to  remark 
that  the  defendant  attempted  to  prove  that  at  the  time  of  the 
execution  of  these  writings  an  afflicting  dispensation  of  Provi- 
dence had  bereaved  him  of  his  understanding.  His  right  to 
prove  this  was  not  questioned  upon  the  argument ;  and  the  state 

(o)  Accord,  Armstrong  v.  Hall,  OKU  178;  Mason  v.  Evans,  Coze  189;  Dot, 
Obert  v.  Hammel,  S  Harr.  81;  Dm  v.  McKnight,  6  Hal.  S9S ;  Den,  Wooden  v. 
Sh(,tweU,  3  Zab.  W5  ;  Mulford  v.  Peterson,  6  Vr.  1S7,  1S6 ;  but  see  Rogers  v. 
Colt,  1  Zab.  18,  704  ;  Stryker  v.  VandcrbUt,  1  Dutch.  4SS  ;  Garrctson  v.  Kane,  S 
Dutch,  SOS  ;  Leigh  v.  Clark,  S  Stock,  110;  Martin  v.  Righter,  S  Stock.  510. 


568  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Miller  v.  Stoy. 

of  the  case,  the  verdict  of  the  jury,  and  the  manner  in  which  the 
allegation  was  met  by  the  counsel  leave  a  full  impression  that 
this  part  of  *the  defence  was  amply  sustained  upon  the  trial.  It 
is;under  this  full  impression  that  the  second  point  is  considered, 
and  I  think  it  would  be  useless  to  spend  much  time  upon  it. 

The  question  called  peculiarly  for  the  investigation  of  a  jury 
and  their  opinion  ought  not  to  be  lightly  disturbed.  The  train 
of  circumstances  laid  before  them  from  the  first  suspicion  of  the 
forgery  and  the  mission  to  Ryder ;  to  the  midnight  visit  with 
the  guilty  son  to  the  house  of  the  unhappy  father  and  terminat- 
ing in  the  concealment  of  the  forgery  of  Ryder's  name,  was 
certainly  calculated  to  delude  and  defraud  a  firmer  mind  than 
Rynear  Moore's  in  its  best  moments,  much  more  in  its  then 
feeble  and  imbecile  state.  With  such  evidence  before  it  I  should 
liave  been  surprised  had  the  jury  come  to  a  different  result,  and 
I  think  their  verdict  ought  not  to  be  set  aside. 

I  express  no  opinion  upon  the  evidence  of  compounding  the 
felony  as  a  distinct  point  in  this  controversy.  The  facts  which 
are  supposed  to  prove  it  form  a  part,  and  no  inconsiderable  part 
in  that  extraordinary  detail,  which  so  certainly  and  unavoidably 
led  the  jury  to  the  true  answer  to  the  issue  before  them. 

I  think  the  rule  should  be  discharged  and  judgment  entered 
for  the  defendant. 

BY  THE  WHOLE  COURT.     Let  the  rule  be  discharged. 


SAMUEL  MILLER  v.  PHILIP  STOY. 


1.  Debt  due  under  the  timber  act.  (a) 

2.  Endorsement  on  the  summons. 

3.  State  of  demand. 


On  certiorari. 


(a)  Thompson  v.  Burdsatl,  1  South.  170;    Crane  v. ,  Coxe  5S ;    Goto 

v.  GUI,  Coxe  11 ;  Clark  v.  Collins,  3  Or.  478. 

*476 


2  SOUTH.]  FEBRUARY  TERM,  1819.  559 

Miller  «.  Stoy. 
White  and  Armstrong,  for  plaintiff. 

Opinion  of  the  court. 

SOUTHARD,  J. 

There  was  a  trial  below  on  the  return-day  of  the  summons 
and  in  the  absence  of  the  defendant.  The  state  of  demand  is 
in  the  following  words : 

"  Samuel  Miller  to  Philip  Stoy,  Dr. 
1817.  February.     To  cutting  one  white-oak  tree  and  tak- 
ing the  same  away  without  leave,    $8  00" 

If  this  was  designed  as  a  state  of  demand  in  trespass  there 
*must  be  a  reversal.  It  is,  in  many  respects,  deficient,  and  does 
not  at  all  comport  with  the  style  of  action,  which  is  debt. 

But  the  plaintiff,  no  doubt,  intended  to  bring  an  action  of 
debt,  under  what  is  called  our  timber  act  (Pat.  4$),  to  recover 
the  penalty  for  cutting  a  single  tree.  If  this  be  so,  the  name 
of  the  prosecutor  and  title  of  the  statute  ought  to  be  endorsed  on 
the  process,  (a)  And  the  state  of  demand  is  defective  in  not 
setting  out  in  what  right  the  plaintiff  sued — whether  as  owner 
or  informer ;  (6)  where  the  tree  was  cut ;  (c)  that  the  defendant 
had  neither  right  nor  permission  to  cut  it ;  (d)  and  by  what  act 
of  the  legislature  the  suit  was  authorized,  (e) 

There  must  be  a  reversal. 

(o)  Oliver  v.  Larzaleer,  post  5 IS;  Aclcerson  v.  Zabriakie,  2  Hot.  167;  Dallas 
v  Hendry,  Penn.  *97S  ;  Griffith  v.  Weal,  5  Hal.  SOI. 

(6)  Williamson  v.  Carroll,  1  Harr.  217 ;  Castner  v.  Egbert,  7  Hal.  S59 ;  Bns~ 

well  v.  Robinson,  4  Vr.  S7S ;  Harris  v.  Moore,  Coxe  44 ; v.  Gaston, 

Coxe  52  ;  Jones  v.  Pitman,  7  Hal.  9S  ;  Vandeventer  v.  Van  Court,  Penn.  *169. 

(c)  Hill  v.  Carter,  1  Harr.  87;  Matthews  v.  Pemberlon.  Penn.  *4£8  ;  Kerr  v. 
Harker,  2  Hal.  349. 

(d)  See  Winter  v.  Peterson,  4  Zab.  524;  Davidson  v.  Schenek,  £  Vr.  174. 

(e)  See  Anonymous,  Penn.  *516  ;  Thorpe  v.  Rankin,  4  Harr.  36 ;  Qravford  v. 
N.  J.  R.  R.,  4  Dutch.  479. 

*477 


560  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Van  Horn  v.  Hamilton. 


WILLIAM  VAN  HORN  v.  FRANCIS  HAMILTON. 

1.  State  of  demand  insufficient. 

2.  Action  misconceived,  (a) 


On  oertiorari. 

Ryerson,  for  plaintiff. 
Opinion  of  the  court. 

SOUTHARD,  J. 

The  summons  is  "to  answer  Francis  Hamilton  and  show 
cause,  if  any  you  have,  why  a  certain  execution  against  said 
Francis,  in  the  hands  of  William  Hoppough,  constable,  in  your 
favor,  issued  by  Zebulon  Sutton,  Esq.,  for  $33.41  debt,  and  the 
costs,  why  they  shall  not  be  receipted ;  hereof  fail  not "  &c. 

On  the  return-day  of  the  summons  the  defendant  did  not 
appear,  but  the  plaintiff  filed  his  state  of  demand  and  proceeded 
to  offer  his  evidence ;  and  the  justice  gave  judgment  for  $29.67 
debt,  with  $1.08  costs. 

The  state  of  demand  filed  complains  "that  the  defendant, 
Van  Horn,  had  one  certain  execution  in  his  favor  against  the 
plaintiff,  in  the  hands  of  William  Hoppough,  constable,  issued 
by  Zebulon  Sutton,  Esq. — amount,  $33.41  debt,  besides  the  costs 
on  the  same — which  you  agreed  should  be  receipted  on  condition 
that  the  plaintiff  should  give  up  to  you  a  certain  judgment  in 
his  favor  against  William  Fountain,  on  the  docket  of  Benjamin 
Hamilton,  Esq.,  of  about  $29,  and  pay  the  balance  in  cash ;  then 
the  said  execution  against  said  plaintiff,  in  the  hands  of  William 
Hoppough,  constable,  was  to  be  receipted ;  *all  which  the  said 
plaintiff  avers  he  has  done  on  his  part,  and  the  defendant  hath 
refused,  and  still  doth  refuse,  to  receipt  said  execution  accord- 
ing to  his  agreement,  to  the  damage  of  the  plaintiff  $50. 

(a)  Sayres  v.  Springfield,  3  Hal.  168. 

*478 


2  SOUTH.]  FEBRUARY  TERM,  1819.  561 


Westbrook  v.  Van  Auken. 


1.  If  upon  this  state  of  demand  the  plaintiff  has  any  claim 
he  cannot  support  it  in  an  action  of  debt.     He  must  recover  the 
damages  he  has  sustained  in  an  action  on  the  case  for  a  breach 
of  the  contract.     Debt,  even  in  the  court  for  the  trial  of  small 
causes,   cannot    be    brought   except  upon   "a   bond   or  other 
specialty,  note  of  hand,  bill  of  exchange,  book  account  or  other 
demand  founded  on  simple  contract  for  the  payment  of  money 
only"     This  is  not  such  a  contract.     But — 

2.  Although  the  justice  in  his  docket  has  called  it  "  an  action 
of  debt,"  yet  the  summons  is  not  in  debt.     It  is  not,  indeed,  a 
summons  in  any  form  or  style  of  action  with  which  I  am  ac- 
quainted, and  is  altogether  informal  and  irregular. 

In  my  opinion  the  judgment  must  be  reversed. 


BENJAMIN  WESTBROOK  v.  EVERT  VAN  AUKEN. 

In   action  on  the  "  Act  to  ascertain  the  toll  of  millers"  &o,  the  verdict 
must  show  on  what  offences  the  conviction  is  had.  (a) 

On  certiorari. 

Attorney- General,  for  plaintiff. 

Opinion  of  the  court. 

SOUTHARD,  J. 

The  state  of  demand  claims  $63  for  twenty-one  different  vio- 
lations of  the  law,  entitled  "  An  act  to  ascertain  the  toll  of 
millers,  passed  the  25th  of  May,  1799,"  and  gives  the  necessary 
specifications  of  time  &c.  The  jury  found  a  verdict  "  that  the 
defendant  oweth  the  plaintiff  $18  debt,  and  six  cents  co-ts." 
And  the  judgment  was  "  for  the  plaintiff  for  the  said  sum  of 
$18  debt,  it  being  for  six  several  offences,  and  $6.96  costs." 

(o)  Whitlock  v.  Tornpkins,  Perm.  *273 ;  Crawford  v.  N.  J.  R.  R.  Con  4  Dutch. 
479;  Clark  v.  Collins,  S  Or.  473. 

36 


562  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Oliver  v.  Applegate. 

The  objection  taken  is  to  the  verdict  and  judgment ;  that  they 
do  not  specify  the  offences  for  which  they  were  given ;  and  the 
objection  is  well  founded.  The  particular  offences  on  which  the 
conviction  is  had  should  have  been  specified  in  the  verdict.  Penn. 
411,412,928,1007;  Oro.Jao.953. 

Let  the  judgment  be  reversed. 


*STACY  OLIVER  v.  JOHN  APPLEGATE. 

When  constable  sues  for  goods  taken  under  an  execution,  defendant  may 
show  that  the  judgment  was  voluntary  by  confession,  without  affidavit ;  and 
if  it  so  appear,  plaintiff  cannot  recover,  (a) 


On  certiorari. 

% 

SOUTHARD,  J. 

One  Thomas  Stevens  voluntarily  appeared  before  the  justice 
and  confessed  a  judgment  to  Isaac  Johnson,  no  affidavit  being 
made  by  Johnson  to  justify  or  authorize  it.  On  the  22d  of 
January,  1818,  the  justice  issued  an  execution  and  put  it  into 
the  hands  of  John  Applegate,  the  defendant  in  certiorari,  who 
was  a  constable.  He  did  not  go  to  the  house  of  Stevens  to  make 
a  levy,  but  on  the  24th  of  January  saw  him  from  home,  and  re- 
ceived from  him  a  list  of  certain  goods  which  were  left  in  his 
possession. 

Another  judgment,  after  the  service  of  process,  was  entered  by 
the  same  justice  against  the  same  defendant,  on  the  17th  of 
January,  1818,  the  execution  put  into  the  hands  of  Stacy  Oliver, 
who  made  a  regular  levy  on  and  sale  of  the  same  goods. 

It  does  not  appear  by  the  record  which  execution  was  first 
issued  and  came  into  the  hands  of  the  officer,  but  from  the  course 

(a)  Parker  v.  Origgs,  I  South.  161 ;  Sheppard  v.  Sheppard,  5  Hal.  252 ;  Ely 
v.  Parkhurst,  1  Dutch.  188 ;  Clapp  v.  Ely,  3  Dutch.  563 ;  Skillman  v.  Applegate, 
8  Hal.  62;  Carson  v.  Wilson,  6  Hal.  43;  Hall  v.  Snowhill,  2  Or.  551;  Garret- 
ion  v.  Kane,  3  Dutch.  208  ;  Sharp  v.  Young,  2  South.  845. 

*479 


•2  SOUTH.J  FEBRUARY  TERM,  1819.  OG3 

Cliver  v.  Applegate. 

•of  the  trial  it  is  to  be  presumed  fairly  that  the  execution  came 
first  to  Applegate,  and  that  he  made  his  list  of  goods  before 
Cliver  made  his  levy  ;  and  believing  that  he  was  in  possession 
of  and  entitled  to  the  goods  under  the  writ  which  he  held,  he 
brought  this  action  against  Cliver  for  taking  and  selling  them. 
It  is  a  contest  between  two  constables,  each  maintaining  a  right 
to  the  goods  in  virtue  of  the  execution  which  he  held.  Apple- 
gate  was  successful,  and  recovered  $42.25  of  damages. 

It  is  objected  to  this  judgment  that  Applegate  had  no  right  to 
maintain  his  suit.  1.  Because  the  judgment  which  was  the  foun- 
dation of  the  execution  in  his  hands  was  void,  and  could  be  the 
foundation  of  no  rights.  2.  Because  he  (Applegate)  never  made 
-a  levy  on  the  goods,  nor  had  them  in  his  possession,  but  that 
•Oliver  did  make  a  levy  and  was  legally  entitled  to  hold  them. 

1.  Upon  the  first  point  it  is  manifest  that  the  judgment  against 
Stevens  in  favor  of  Johnson  was  directly  opposed  to  the  provis- 
ions of  our  act  to  prevent  the  fraudulent  confession  of  judgments. 
It  was  therefore,  by  virtue  of  that  act,  void,  not  a  valid  judg- 
ment.     As  such  no  execution  issued  upon   it  could   give  an 
of  *ficer  such  a  right  of  property  or  possession  in  the  goods  of 
the  defendant  as  would  support  a  claim  against  any  one  who  had, 
by  any  means,  come  lawfully  into  the  possession  of  them.     As 
against  Cliver,  Applegate  had  no  rights. 

2.  It  has,  more  than  once,  been  decided  that  an  officer  need 
•not  remove  the  goods,  but  may  make  the  defendant  his  store- 
keeper, at  his  own  responsibility ;  it  is  also  true  that  the  mere 
fact  of  seeing  the  goods  when  he  makes  the  levy  can  add  nothing 
to  his  rights  or  responsibilities,  (a)     It  is  the  possession  of  the 
writ  which  confers  these  rights  and  creates  these  responsibilities. 
They  commence  when  he  receives  the  writ.     The  goods  are  bound 
from  the  receipt  of  it,  and  the  officer,  for  his  own  safety,  ought 
speedily  to  see  and  inventory  them,  and  take  the  necessary  mea- 
sures for  their  safekeeping.     But  if  he  neglect  this  it  gives  a  sub- 
sequent writ,  in  the  hands  of  another  officer,  no  preference.     Ap- 
ia) NtweU  v.  Sibley,  1  South.  SSI;  see  Lloyd  v.  Wyckoff,  6  Hal.  S26  ;  Brcvn- 

•ter  v.  Vail,  Spen.  57  ;  Otidwell  v.  Fifield,  4  Zab.  150. 

*480 


564  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Oliver  v.  Applegate. 

plegate,  if  the  execution  first  came  to  his  hands,  had  a  right  to 
the  goods,  and  no  act  of  Oliver's  could  divest  that  right. 

KlRKPATRICK,  0.  J. 

I  am  not  willing  to  go  so  far  as  my  brother  Southard  has  gone 
in  this  case,  and  to  say  that  the  judgment  against  Stevens  in 
favor  of  Johnson  is  void.  The  act  to  prevent  the  fraudulent 
confession  of  judgments  does  not  say  so. 

If  a  justice  should  enter  a  final  judgment  without  bringing 
the  defendant's  note  into  court,  by  process  or  otherwise,  or  if 
he  should  enter  such  judgment  by  default,  without  a  hearing 
upon  the  merits  or  without  the  verdict  of  a  jury,  when  a  jury 
had  been  lawfully  demanded  by  either  party,  such  judgment 
would  be  unlawfully  entered,  and  be  voidable  by  a  proper  tribu- 
nal, but  I  believe  it  would  not  be  absolutely  void.  So  here,  this 
judgment  in  favor  of  Johnson  being  entered  without  the  affidavit 
prescribed  by  the  act  to  prevent  the  fraudulent  confession  of 
judgments,  though  unlawfully  entered,  is  not,  therefore,  abso- 
lutely void,  but  in  order  to  make  it  so  there  must  be  the  inter- 
vention of  some  competent  judicatory.  The  subject-matter  is 
within  the  jurisdiction  of  the  justice  ;  he  has  recorded  his  judg- 
ment upon  it,  and  it  is  not  for  ministerial  officers,  or  others  who 
may  think  themselves  aggrieved,  to  pronounce  it  void. 

But  yet  that  judgment  is  not  only  irregularly  and  unlawfully 
entered,  but  upon  a  fair  construction  of  the  act  it  may  be  con- 
sidered as  fraudulent  also,  and,  therefore,  in  its  very  nature  void 
*as  against  bona  fide  creditors.  The  defendant  in  the  cause 
before  us  has  set  up  this  fraud  in  his  defence  and  has  brought  it 
before  the  jury  as  a  matter  in  pais,  as  it  was  proper  for  him  to 
do  ;  for  questions  of  fraud  being  mixed  questions,  partly  of  law 
and  partly  of  fact,  must  always  be  determined  by  the  jury  and 
not  by  the  judges ;  (a)  and  the  jury  have  found  for  the  plain- 
tiffs, and  of  course  they  have  found  in  favor  of  Johnson's  judg- 

(a)  Den,  Inskeep  v.  Lecony,  Ooxe  39  ;  Hendricks  ads.  Mount,  post  738  ;  Cole  v. 
Taylor,  2  Zab.  59;  Miller  ads.  Pancoast,  5  Dutch.  250  ;  Rtford  v.  Cramer,  1  Vr. 
250;  see  Van  Pelt  v.  Veghte,  2  Or.  207 ;  Cook  v.  Johnson,  1  Seas.  52  ;  Bclford 
v.  Crane,  1  C.  E.  Or.  265. 

*481 


^  SOUTH.]  FEBRUARY  TERM,  1819.  565 

Oliver  v.  Applegate. 

ment  and  against  the  fraud  alleged.  This  verdict  is  manifestly 
founded  in  mistake,  for  the  plaintiff,  on  the  trial,  having  ad- 
mitted that  the  judgment  upon  which  the  execution  was  issued 
had  been  entered  without  the  necessary  affidavit,  the  jury  were 
bound  by  that  admission,  and  such  a  judgment  being,  in  con- 
struction of  law,  fraudulent,  they  ought  so  to  have  found  it.  And 
whether  the  law  upon  this  subject  was  declared  and  given  them 
in  charge  by  the  justice,  or  they  undertook  to  decide  it  for  them- 
selves, makes  no  difference ;  still  it  is  a  verdict  against  law.  If 
this  proceeding,  therefore,  were  in  one  of  the  higher  courts,  this 
verdict,  manifestly  founded  in  mistake  and  against  law,  would 
be  set  aside. 

But  inasmuch  as  the  justices  do  not  possess  the  power  of  set- 
ting aside  verdicts  and  granting  new  trials,  this  court,  in  order 
that  there  may  not  be  a  failure  of  justice,  have,  in  such  cases, 
interfered  and  set  aside  the  judgment  itself,  founded  upon  such 
verdict,  leaving  it  to  the  party  to  take  such  further  steps  as  his 
case  may  warrant.  And  upon  this  principle  I  think  this  judg- 
ment must  be  reversed. 

As  to  the  other  question,  whether  the  mere  delivery  of  the 
•execution  to  the  constable  gave  him  such  an  interest  in  the  goods 
of  the  defendant,  or  such  a  possession  of  them  as  to  enable  him 
to  maintain  trover,  (a)  I  shall  not  inquire  into  it  at  present,  the 
ground  before  stated  being,  in  my  opinion,  sufficient  for  the  re- 
versal of  the  judgment. 

ROSSELL,  J.,  concurred  in  the  reversal  on  the  ground  that 
there  was  no  valid  judgment  in  favor  of  Johnson. 

Judgment  reversed. 

(a)  Cosher  v.  Peterson,  1  South.  S17. 


566  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Ward  v.  Folly. 


*PETEB  WARD  v.  ABEAHAM  FOLLY. 

1.  A  road  used  as  such  for  forty  years  and  upwards,  considered  as  regularly 
laid  out,  though  no  record  be  found,  (o) 

2.  Overseer  justified  in  repairing  road,  though  not  assigned  to  him  in  writ- 
ing by  township  committee.  (6) 


On  certiorari. 

Ward,  who  was  the  defendant  below,  was  an  overseer  of  the- 
highways  in  the  county  of  Bergen.  Folly  brought  suit  against 
him,  and  in  his  state  of  demand,  which  is  in  trespass,  complains- 
that  the  defendant,  with  force  &c.,  entered  his  close  &c.,  and  his- 
post  and  rail  fence  then  and  there  standing,  did  pull  up  and 
throw  down,  break,  destroy,  take  and  carry  away,  and  other 
wrongs  &c.,  to  his  damage  $25. 

The  defence  set  up  by  defendant  was  that  he  was  an  over- 
seer of  the  highways,  and  the  trespass  complained  of  was  his- 
clearing  out  and  mending  a  private  road.  By  an  amended  re- 
turn of  the  justice  it  appears  "that  the  road  had  been  in  use  up- 
wards of  forty  years ;  that  there  was  no  recorded  return  of  it ; 
that  it  had  frequently  been  altered  in  various  parts  without  any 
order  of  the  surveyors ;  that  the  obstructions  removed  by  the 
defendant  were  put  for  the  purpose  of  altering  the  road,  so  as  to- 
make  it  more  passable,  it  being  so  bad  at  times  that  the  people 
were  obliged  to  leave  it  and  pass  over  the  ground  where  the  new 
part  was  made  ;  that  the  defendant  agreed  to  the  alteration  before 
it  was  made ;  that  the  defendant  took  away  some  ground  and 
stones  for  the  repair  of  the  road,  and  threw  down  ten  panels  of 
fence ;  that  the  defendant,  though  an  overseer,  had  not  had  this 

(o)  Smith  v.  State,  3  Zab  130;  affirmed  in  3  Zab.  712;  Holmes  v.  Jersey 
City,l  Beau.  299;  Atty.-Oen.  v.  M.  &  E.  R.  R.,  4  C.  E.  Or.  391;  Deveney 
v.  Gallagher,  5  C.  E.  Or.  38;  Jersey  Oily  v.  Morris  Canal,  1  Seas.  548. 

(b)  See  Stale  v.  Hageman,  1  Or.  314;  State  v.  Holliday,  3  Hal.  205;  Morgan. 
v.  Monmouth  Plank  Road  Co.,  2  Dutch.  99;  Callahan  v.  Morris,  1  Vr.  160  • 
State  v.  Elkinton,  1  Vr.  335. 

*482 


2  SOUTH.]          FEBRUARY  TERM,  1819.  567 

Ward  v.  Folly. 

road  assigned  regularly  to  him  for  that  year,  although  he  had  for 
a  previous  year." 

After  this  state  of  facts  appeared  the  defendant  moved  to 
quash  the  proceedings  because  he  was  a  civil  officer,  and  the  jus- 
tice had  no  power  to  sustain  a  suit  against  him  for  such  a  cause. 
This  motion  was  overruled,  the  cause  submitted  to  the  jury  and 
a  verdict  rendered  for  $15. 

Halsey,  for  plaintiff. 

Attorney- General,  for  defendant. 

Opinion  of  the  court. 

KlRKPATRICK,  C.  J. 

The  two  questions  raised  upon  this  case  by  the  counsel  at  the 
bar,  and  the  only  two,  so  far  as  my  notes  enable  me  to  say,  were — 

1.  Whether  this  road,  the  return  whereof  is  not  found  recorded 
in  the  county  clerk's  office,  be  such  public  highway  as  that  *an 
overseer  can  lawfully  enter  upon  it  and  open  and  repair  it  for  the 
public  use  and  accommodation.     And  if  so — 

2.  Whether  this  overseer,  without  having  this  particular  part 
of  the  road  assigned  to  him  in  writing  by  the  township  commit- 
tee, was  justifiable  in  thus  entering  upon  it  and  working  it. 

I  shall  take  it  that  if  these  two  questions  can  be  answered  in 
the  affirmative  the  judgment  must  be  reversed.  For  I  think  it 
is  fairly  to  be  inferred,  from  the  return  of  the  justice,  that  what 
the  overseer  did  was  nothing  more  than  an  opening  up  of  the 
road  to  its  proper  width  and  transposing  of  materials  of  repair 
from  one  part  of  it  to  another.  And  I  take  this  with  the  greater 
confidence  because  the  two  questions  stated  by  the  counsel  for  the 
defendant  here  seem  to  me  to  rest  upon  that  foundation,  and  be- 
cause the  justice,  in  his  amended  return,  says  "it  appeared  that 
the  defendant  threw  down  ten  panels  of  fence  that  belonged  lo 
the  plaintiff  and  took  away  some  stone  and  ground  that  had  been 
put  across  the  old  road,"  the  old  road  and  new  one  meaning,  as  it 
was  explained  by  the  plaintiff's  counsel,  and  without  contradir- 

*483 


568  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Ward  v.  Folly. 

tion  by  his  adversary,  the  mere  wagon  tracks  upon  the  same  road, 
and  not  two  distinct  roads. 

1.  As  to  the  first  of  these  questions,  then.  I  have  looked  into 
the  old  acts  of  assembly  upon  this  subject,  so  far  as  I  have  been 
able  to  collect  them.  The  first  that  I  can  find  was  passed  in 
1682,  soon-  after  the  first  settlement  of  the  province.  It  directs 
that  all  necessary  highways  &c.  shall  be  set  and  laid  oui  in  and 
through  every  county  within  this  province  by  certain  persons 
therein  named  and  appointed  for  their  respective  counties ;  and 
that  they  shall  make  account  thereof  and  give  and  return  the 
same  to  the  governor  and  council,  that  they  may  be  entered  and 
registered  in  the  public  records  of  the  said  province. 

The  next  act  which  I  have  was  passed  in  1716.  It  confirms 
all  roads  of  six  and  four  rods  wide  theretofore  laid  out  by  vir- 
tue of  a  certain  act  of  assembly  therein  mentioned  and  thereby 
repealed. 

The  repealed  act  I  cannot  find,  but  what  is  there  said  of  it,  and 
also  what  is  said  in  the  preamble  of  an  act  respecting  the  road 
from  Amboy  to  Burlington,  passed  in  1758,  induces  a  belief  that 
it  only  increased  the  powers  of  the  former  commissioners  and 
gave  them  more  special  directions  as  to  the  width  of  the  roads 
by  them  to  be  laid  out. 

*This  act  of  1716,  after  confirming  the  roads  before  laid  out, 
directs  the  choosing  of  overseers  of  the  highways,  defines  their 
powers  and  prescribes  their  duties ;  and  among  other  things  it 
expressly  directs  that  the  public  highways  to  be  laid  out  by  tli-e 
said  surveyors  shall  be  four  rods  wide.  But  it  does  not  direct 
that  they  shall  be  recorded  in  the  county  clerk's  office,  nor  in  any 
other  office. 

The  next  act  was  passed  in  1760.  It  confirms  all  roads  and 
highways  of  six  and  four  rods  wide  which  have  theretofore  been 
laid  by  any  acts  of  assembly  whatsoever ;  and  after  directing  the 
manner  of  choosing  surveyors,  and  of  obtaining  a  public  road,  and 
after  directing  that  the  road  so  to  be  laid  out  shall  be  two,  three 
or  four  rods  wide,  as  the  case  may  require,  it  especially  directs 
that  the  said  surveyors  shall  make  return  thereof  to  the  clerk  of 
the  county,  who  shall  record  the  same  in  a  book  to  be  kept  for 

*484 


2  SOUTH.]          FEBRUARY  TERM,  1819.  569 

Ward  v.  Folly. 

that  purpose,  to  be  called  the  road-book.  And  this  is  the  first 
act  that  I  can  find  which  requires  such  return  and  such  entry, 
and,  I  believe,  is  the  origin  of  the  road-book. 

The  next  act  in  order,  and  the  last  of  which  I  shall  take 
notice,  is  that  of  1774.  This  act,  like  its  predecessor,  confirms 
all  roads  and  highways  of  six  and  four  rods  wide  theretofore  laid 
out  by  any  act  or  ads  of  assembly  whatsoever  ;  directs  the  choos- 
ing of  surveyors,  the  mode  of  proceeding,  the  width  of  the  roads, 
and  the  return  and  recording  thereof  in  the  road-book,  and  then 
repeals  all  former  acts  upon  that  subject. 

If  this  be  a  correct  view  of  these  acts,  it  is  obvious  that  we 
are  not  to  look  for  the  records  of  roads  laid  out  and  used  before 
the  year  1760  in  the  road-books  of  the  respective  counties,  be- 
cause until  that  tinie  no  such  books  existed  by  any  provision  of 
the  law. 

It  is  probable,  too,  and  indeed  I  have  been  so  informed  by  a 
gentleman  who  was  very  familiar  with  the  public  records  of  the 
province  of  that  day,  that  very  few  of  the  roads  laid  out  by  virtue 
of  the  act  of  1682,  and  the  succeeding  acts  till  1760,  were  to  be 
found  in  those  records ;  and  that  it  was  therefore,  principally, 
that  these  confirming  acts  were  made.  And  surely  nothing  could 
be  more  reasonable,  for  it  would  have  been  exceedingly  inconve- 
nient that  the  whole  intercourse  of  the  people  should  be  inter- 
rupted or  suspended  merely  because  the  roads  happened  not  to 
be  recorded,  however  long  they  might  have  been  in  public  use. 

If  this  be  so,  the  road  in  question  being  an  ancient  road,  and 
*used  as  such  as  far  back  as  the  memory  of  man  can  reach,  it 
must  be  considered  as  a  public  four-rod  road,  laid  out  by  virtue 
of  some  one  of  these  former  acts,  before  the  recording  in  the 
county-book  was  directed,  and  confirmed  by  those  that  succeeded  it. 

Upon  the  first  question,  then,  I  think  the  case  is  with  the  plain- 
tiff in  certiorari.  The  road  was  a  lawful  public  highway. 

2.  As  to  the  second  question,  the  words  of  the  act  are :  "  The 
township  committee  are  hereby  authorized  and  directed  to  assign 
and  appoint,  in  writing,  to  the  overseers  respectively,  their  seve- 
ral limits  and  divisions  of  the  highways  within  such  township, 
for  working,  amendment  and  repair." 

*485 


570  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Ward  v.  Folly. 

The  great  object  of  this  clause  is  to  inform  the  overseer,  with 
precision,  what  part  of  the  road  belongs  to  him,  and  to  make 
him  responsible  for  the  repairing  of  it.  Whatever  advantage,, 
therefore,  he  might  make  of  the  want  of  formality  in  giving  that 
information,  third  persons  who  are  in  no  way  interested  in  it  or 
affected  by  it,  can  make  none.  Besides,  after  a  good  deal  of  in- 
quiry, I  have  found  that  the  course  pursued  by  these  committees 
in  very  many  townships,  has  been  to  lay  off  the  township  in  dis- 
tricts, which  are  entered  in  their  books  and  which  remain  unaltered,, 
sometimes  for  many  years  together ;  and  then  at  the  town  meet- 
ing, annually,  to  choose  an  overseer  for  each  district,  and  to  make 
no  further  assignment  about  it.  And  surely,  whatever  an  over- 
seer might  say,  in  such  case,  in  order  to  avoid  a  heavy  penalty, 
no  other  man  could  raise  up  any  objection  ag&inst  it. 

Upon  the  whole,  then,  on  both  these  points  stated  by  the 
counsel,  I  think  this  judgment  must  be  reversed. 

Judgment  reversed. 


PETER  WARD  v.  ABRAHAM  FOLLY 
On  certiorari. 

This  was  an  action  between  the  same  parties  for  a  subsequent 
trespass.  The  same  facts  appeared  as  in  the  preceding  case, 
except  that  the  place  where  the  fence  was  thrown  down  and  the 
stones  and  ground  dug  up  and  carted  away,  was  altogether 
beyond  the  limits  of  the  old  and  new  parts  of  the  road,  and  upon 
the  premises  of  the  plaintiff. 

Halsey,  for  plaintiff. 

Attorney- General,  for  defendant. 

SOUTHARD,  J.,  remarked — An  overseer  has  no  right  to  enter 
on  lands  adjoining  the  road,  to  the  injury  of  the  owner,  for  any 

*486 


2  SOUTH.]  FEBRUARY  TERM,  1819.  571 


Clark  v.  Read. 


purposes  except  those  specified  in  the  statute,  (a)  Whether  this 
overseer  had  trespassed  for  other  purposes,  and  the  extent  of  the 
trespass,  were  proper  subjects  for  the  jury.  There  is  nothing  in 
the  case  to  show  that  they  erred.  On  the  contrary,  so  far  as  the 
return  of  the  justice  is  to  be  regarded,  we  have  full  evidence 
that  they  decided  correctly.  The  overseer  had  no  right  to  throw 
down  the  plaintiff's  fence ;  to  carry  away  his  rails  and  stones 
and  dig  up  his  ground  lying  beyond  the  limits  of  the  road, 
without  his  permission.  The  verdict  and  judgment  are  right. 

BY  THE  COURT.     Let  the  judgment  be  affirmed.] 


ADRIEL  CLARK  v.  WILLIAM  READ. 

1.  Verdict  not  set  aside  on  affidavit  of  juror  who  swears  that  he  did  not 
agree.  (6) 

2.  Justice  may  take  time  to  consider  of  his  judgment,  but  must  give  parties 
notice  when  he  will  give  judgment,  (c) 

3.  Party  may  not  lay  before  jury  an  account  not  filed  on  return-day,  (d) 

On  certiorari. 

Davenport,  attorney  for  plaintiff. 

(o)  Winter  v.  Peterson,  4  Zab.  5S4  ;  Davidson  v.  Schcnck,  S  Vr.  174  ;  Wuest- 
hoff  v.  Seymour,  7  C.  E.  Or.  70;  see  Hobolcen  &c.  Co.  v.  Kerrigan,  2  Vr,  IS, 

(6)  Brevster  v.  Thompson,  COM  32 ;  Dare  v.  Ogden,  Coie91,  92,  note;  Ran- 
dall v.  Orover,  Coxe  151;  Schenck  v.  Stevenson,  Penn.  *SS7 ;  Vunck  v.  Hull, 
Penn.  *815  ;  Jessup  v.  Cook,  1  Hal.  4$4  ;  Den,  Popino  v.  McAllister,  £  Hal.  46  ,- 
Kennedy  v.  Kennedy,  S  Harr.  4^4  ;  Sheppard  v.  Sheppard,  5  Hal.  354  ;  Deacon 
v.  Shreve,  2  Ztib.  176;  Hutchinson  ads.  Coal  Co,  7  Vr.  25;  see  Wallace  v.  Coil, 
4  Zab.  600;  Parsell  v.  State,  1  Vr.  5SO ;  Lindauer  v.  Teeter,  12  Vr,  259. 

(c)  Pierson  v.  Pierson,  2  Hal,  125;   Sempie  v.  Trustees  <tc.,  S  Hal,  60;    Van 
Riper  v.  Van  Riper,  1  South.  156  ;  Hendricks  v.  Craig,  post  569 ;   Van  Dorenv. 
Van  Doren,  5  Hal,  286;  Edwards  v.  Hance,  7  Hal.  108;   Day  v.  Hall,  7  BaL 
205. 

(d)  Hunt  v.  South,  post  495;    Dare  v.   Ogden,  Coxe  91;     Wright  v.  Rogers, 
Perm,  *547, 


572  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Clark  v.  Read. 


SOUTHARD,  J. 

Three  reasons  were  filed  as  grounds  of  reversal  in  this  case. 

1.  "The  verdict  was  given  by  eleven  men  only." 

2.  The  justice  adjourned  the  cause  for  more  than  fifteen  days 
without  consent. 

3.  Unlawful  evidence  was   admitted,  to  wit,  the  account  of 
the  defendant  below  after  the  hearing  was  over,  and  after  the 
plaintiff",  late  in  the  evening,  had  retired  from  the  court. 

On  the  first  point.  It  appears  by  the  transcript  that  twelve 
jurors  were  sworn,  and  the  verdict  is  recorded  in  the  usual  form  ; 
but  the  justice  adds — "some  time  after  the  jury  was  dismissed 
one  of  the  jurors  swore  that  he  was  not  agreed  to  the  verdict, 
previous  to  judgment  being  entered."  It  is  upon  this  affidavit 
of  the  juryman  alone  that  this  reason  rests.  I  am  not  willing 
to  rely  on  such  an  affidavit.  A  juror  who  has  come  into  court 
and  publicly  *assented  to  the  verdict  given  in  by  the  foreman 
ought  not  afterwards  to  be  permitted  to  gainsay  or  deny  that 
assent  so  as  to  invalidate  the  verdict.  Such  conduct  in  a  juror 
deserves  severe  animadversion,  and  such  a  course  of  proceeding 
would  lead  to  consequences  much  to  be  lamented.  There  is, 
therefore,  nothing  in  the  first  reason. 

2.  There  is  some  appearance  of  contradiction  in  the  record  in 
this  matter.  The  summons  seems  to  have  been  issued  on  the 
27th  of  January,  returnable  on  the  10th  of  March,  but  the  parties 
met  on  the  10th  of  February ;  an  adjournment  took  place  to  the 
17th  of  February,  when  the  constable  not  being  able  to  return 
the  venire,  a  further  adjournment  took  place  to  the  24th  of  Feb- 
ruary, on  which  day  the  cause  was  tried.  The  word  "  March  " 
is  probably  an  error,  it  should  have  been  February,  and  then, 
until  the  cause  was  tried,  no  illegal  adjournment  was  made.  It 
ft  but  fourteen  days  between  the  return  of  the  summons  and  the 
trial.  After  the  trial  a  considerable  delay  occurred  before  judg- 
ment was  finally  entered,  which  was  on  the  23d  of  June ;  and  it 
is  probably  against  this  delay  that  the  plaintiff"  in  certiorari  com- 
plains as  illegal.  On  the  23d  of  May  the  plaintiff"  below  again 
summoned  the  defendant,  and  when  they  appeared  each  demanded 
judgment,  the  plaintiif  on  his  account,  the  defendant  on  the  ver- 

*487 


2  SOUTH.]  FEBRUARY  TERM,  1819.  573 


Clark  P.  Read. 


diet  which  had  been  rendered  in  his  favor,  but  no  steps  towards 
another  trial  were  taken,  and  the  justice  continued  his  adjourn- 
ments. In  reference  to  the  entry  of  judgment,  he  remarks  that 
he  had  difficulty  arising  from  the  conduct  of  the  juryman,  and 
that  he  "  adjourned,  by  sundry  adjournments  at  two  weeks  each,, 
to  obtain  counsel."  In  all  this  there  is  nothing  erroneous.  The 
statute  does  not  require  judgment  to  be  immediately  entered,  and 
it  is  common  in  all  courts,  even  those  of  the  highest  and  most  ex- 
tensive jurisdiction,  to  delay  for  the  purpose  of  examination  and 
advisement.  Nothing  is  more  frequently  seen  in  our  books  than 
curia  advisare  vuli;  and  this  advisement  is  not  less  necessary 
for  the  judges  in  our  courts  for  the  trial  of  small  causes  than  for 
others.  If,  indeed,  the  delay  arises  from  improper  motives  or  is 
unnecessarily  and  oppressively  protracted,  the  party  has  his 
remedy — he  may  compel  the  entry  of  judgment.  And  where  a 
delay  does  take  place  between  trial  and  judgment,  the  justice 
must  warn  the  parties  that  they  may  have  notice  and  be  present 
when  he  does  give  his  judgment.  This  he  seems  not  to  have 
done,  and  in  this  the  error  lies. 

*3.  The  transcript  takes  no  notice  of  any  account  being  filed 
on  the  return-day  by  the  defendant,  and  the  necessary  legal  in- 
ference is  that  none  was  filed  on  that  day.  Notwithstanding  this, 
the  verdict  is  in  favor  of  the  defendant  for  $30.25.  Accompany- 
ing the  papers,  however,  there  is  an  account  of  the  defendant 
against  the  plaintiff,  and  in  the  certificate  which  the  justice  puts 
to  his  record,  he  has  these  words  :  "  William  Read,  the  defend- 
ant, did  not  produce  his  account  in  court  till  late  in  the  evening, 
after  Mr.  Clark,  the  plaintiff,  had  retired."  The  plaintiff  below, 
who  is  also  plaintiff  here,  alleges  that  this  took  place  on  the  day 
of  the  trial,  and  such  must  be  the  fact  or  the  justice  would  have 
noteu  its  being  filed  in  his  record.  This  was  certainly  altogether 
erroneous.  The  jury  should  not  have  had  before  them  any  ac- 
count which  had  not  been  filed  within  the  proper  time.  Upon 
the  legal  evidence  and  papers  before  them  they  could  not  have 
found  a  verdict  for  the  defendant,  and  their  verdict  ought  not, 
therefore,  to  stand.  The  justice  has  erred  in  this  matter.  If  the 
account  was  filed  on  the  return-day  it  ought  so  to  appear  upon 

*488 


574  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Clark  v.  Read. 


his  record.     If  not  filed  on  the  return-day  he  ought  not  to  have 
received  it  or  laid  it  before  the  jury. 

In  my  opinion  there  must  be  a  reversal. 

KlRKPATRICK,  C.  J. 

This  cause  was  heard  on  the  27th  of  February,  1818,  and  there 
was  a  verdict  for  the  defendant  for  $30.25.  Upon  this  verdict 
there  was  no  judgment  rendered  nor  adjournment  made  at  that 
time.  On  the  12th  of  May  the  plaintiff  took  out 'a  new  sum- 
mons against  the  defendant  for  $100,  returnable  the  26th  of  the 
same  month,  at  which  time  the  parties  appeared  and  the  plaintiff 
prayed  judgment  on  his  old  account,  and  the  defendant  upon  his 
verdict  in  the  former  action.  Upon  this  the  justice  says,  in  his 
return,  "  I  adjourned,  by  sundry  adjournments  of  two  weeks  each, 
till  the  23d  of  June"  Now,  it  is  obvious,  from  this  mode  of 
entry,  that  this  matter  of  the  adjournments  is  .altogether  an  after- 
thought, and  that  none  such  really  took  place  or  were  entered  on 
the  docket,  otherwise  the  entry  must  necessarily  have  been  from 
two  weeks  to  two  weeks  and  not  in  the  form  in  which  it  appears 
on  this  return  ;  nor  does  it  appear  that  the  parties  were  present 
or  had  notices  of  such  pretended  adjournments.  I  think,  there- 
fore, the  whole  proceeding,  in  this  respect,  is  contrary  to  the  di- 
rections and  true  spirit  of  the  act,  *and  therefore,  as  well  as  upon 
general  principles,  erroneous,  and,  of  course,  that  the  judgment 
ought  to  be  reversed  as  well  upon  the  second  as  upon  the  third 
reason  stated  by  my  brother  Southard.  I  hold  it  to  be  clear 
that  a  justice  cannot  thus  closet  himself  up,  or  perhaps  I  might 
rather  say,  go  about  his  usual  business  and  then  give  judgment 
when  and  where  he  pleases  in  the  absence  of  the  parties,  and  es- 
pecially at  such  a  distant  day.  He  must,  like  other  judges,  give 
judgment  in  open  court,  when  the  parties  are  present,  or  had  an 
opportunity  of  being  present.  And  so,  if  my  memory  does  not 
fail  me,  it  has  more  than  once  been  determined  in  this  court. 

BY  THE  WHOLE  COURT.     Let  the  judgment  be  reversed. 

*489 


2  SOUTH.]  FEBRUARY  TERM,  1819.  575 

Lacey  v.  Collins. 


THOMAS  R.  LACEY  and  ANTHONY  S.  EARLE  v.  ZEBULON 
COLLINS,  assignee  of  JOHN  AYERS. 

1.  A  writing  admitting  "a  balance  due,"  not  assignable. 

2.  Suit  must  be  in  name  of  creditor,  (a) 

3.  Name  of  creditor  written  on  the  back  will  not  authorize  holder  to  fill 
tip  assignment  as  in  case  of  promissory  note. 

On  certiorari. 

Neale,  attorney  for  plaintiff. 

SOUTHARD,  J. 

The  plaintiff  claimed  of  the  defendants,  trading  under  the  firm 
of  Lacey  &  Earle,  the  amount  of  principal  and  interest  due  on  a 
paper  in  the  following  words:  "January  3d,  1813.  Then  set- 
tled with  John  Ayers,  and  there  is  a  balance  due  him  from  far- 
rago books,  the  sum  of  twelve  dollars  and  seventy  cents.  For 
Lacey  &  Earle.  William  B.  Cooke."  On  the  back  of  which 
was  endorsed  the  name  of  "  John  Ayers."  The  transcript  states 
that  at  the  trial  one  of  the  defendants,  T.  R.  Lacey,  said  that 
the  writing  was  just  on  the  farrago  books  in  the  account  at  the 
time  it  was  given,  but  this  was  evidently  not  intended  as  a  con- 
fession or  acknowledgment  of  the  debt,  because  on  the  return-day 
of  the  summons  Lacey  filed  a  plea  or  account  in  the  following 
words :  "  John  Ayers,  Dr.,  in  account  with  Thomas  R.  Lacey 
and  Anthony  S.  Earle,  to  sundries;  account  in  1811-12,  $75." 
And  on  the  day  of  trial  he  filed  another,  containing  particular 
items,  and  amounting  in  their  favor,  when  balance  was  struck, 
to  $37.41.  Both  these  accounts  were  correctly  overruled ;  the 
first,  because  it  was  not  such  an  account  as  the  law  *requires,  and 
the  second,  because  it  was  not  filed  on  the  return-day.  The 
judgment  was  in  favor  of  the  plaintiff  for  the  amount  claimed, 
and  the  case  stands  here  upon  the  legality,  assignment  and  proof 
of  the  writing,  which  is  the  foundation  of  the  plaintiff's  claim. 

(a)  Wright  v.  Williamson,  Penn.*965;  see  Sloan  v.  Summers,*  Gr.  609; 
Purnons  v.  Woodward,  2  ZoJ>.  196. 

*490 


576  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Lacev  v.  Collins. 


1.  This  instrument  is  not,  in  its  nature,  assignable.     No  as- 
signment of  it  could  justify  Collins  in  bringing  an  action  upon 
it  in  his  own  name.     Chit,  on  Sills  90 ;  Perm.  ^£#,7##  &c. 

2.  If  it  were  assignable  yet  is  there  no  such  assignment  actually 
made  as  will  give  the  plaintiff  any  interest,  or  enable  him  to 
maintain  the  suit.     It  is  in  blank,  and  although  it  would  autho- 
rize the  plaintiff,  if  it  were  a  promissory  note,  to  put  the  neces- 
sary words  of  assignment  over  the  name,  and  this  even  after  the 
commencement  of  the  trial  and  before  it  was  offered  in  evidence, 
yet,  in  such  cases,  the  assignment  must  be  actually  made  before 
it  can  be  received.     In  this  case  no  such  assignment  could  be  put 
on  the  paper,  and  the  justice  erred  in  admitting  it  as  proof  of  a 
debt  due  the  plaintiff.     Penn.  911,  987. 

3.  Some  doubt  may  rest  upon  the  operation  of  the  defendant's- 
acknowledgment  of  the  note,  whether  it  was  sufficient,  without 
other  proof,  to  make  it  competent  evidence ;  but  as  the  note  or 
paper  was  really  not  assignable,  and  as  no  endorsement  was  upon 
it  which  could  justify  its  admission  even  if  it  were  assignable,  it 
is  not  necessary  to  express  any  opinion  respecting  this  confession. 

I  think  there  ought  to  be  a  reversal. 

KIRKPATEICK,  C.  J. 

I  perfectly  concur  with  my  brother  Southard  in  the  reversing 
of  this  judgment  upon  the  principles  stated.  I  am  not  satisfied 
that  upon  a  paper  like  this  or  any  other  paper  or  instrument, 
not  in  its  nature  assignable,  the  mere  endorsement  of  the  party's 
name  upon  the  back  of  it  will  enable  the  holder  to  write  an 
assignment  to  himself  over  that  name,  even  if  such  endorsement 
were  intended  to  pass  the  interest.  I  do  not  recollect  any  de- 
cision to  that  effect,  and  I  think  it  would  be  contrary  to  prin- 
ciple. As  to  negotiable  paper  the  law-merchant  has  determined 
the  import  of  a  general  assignment,  and  for  the  greater  conve- 
nience has  permitted  it  to  pass  by  the  mere  endorsement  of  the 
name  and  authorized  the  holder  to  write  over  it  the  assignment 
in  form ;  but  if  he  were  to  write  anything  *special  or  different 
from  a  common  assignment,  it  would  be  bad.  But  as  to  those 
papers  or  instruments  not  assignable  in  their  nature,  every  assign- 

*491 


2  SOUTH.]  FEBRUARY  TERM,  1819.  577 


Nixon  v.  Van  Hise. 


ment  must  be  considered  as  special  and  standing  upon  its  own 
strength. 

BY  THE  COURT.     Let  the  judgment  be  reversed. 


LEVI  NIXON  v.  THOMAS  VANHISE. 

1.  Insufficient  demand. 

2.  Promise  to  answer  for  default  of  another,  (a) 


On  certiorari. 

Wall,  for  plaintiff. 

R.  Stockton,  Jr.,  for  defendant. 

SOUTHARD,  J. 

This  was  an  action  of  debt  brought  by  Vanhise  against 
Nixon,  and  the  state  of  demand  sets  out  the  following  case : 
Vanhise  became  bound,  in  writing,  on  September  16th,  1816,  to 
Tilton  Pearce,  a  constable,  for  the  delivery  to  him  of  certain 
goods,  taken  in  execution  as  the  property  of  Samuel  Nixon, 
father  of  Levi.  Levi  Nixon  claimed  the  goods  as  his  own 
property  and  prevented  Vanhise  from  delivering  them  to  the 
constable,  in  consequence  of  which  the  constable  sued  Vanhise 
and  recovered  judgment  against  him.  Levi  Nixon  became  the 

(a)  Dills  v.  Parley  I  South.  £19;  Hoppock  v.  Wilson,  1  South.  149;  Scudder 
v.  Wade,  1  South.  £49  ;  Bucldcy  v.  Beardslee,  post  570;  Ashcroft  v.  Clark,  port 
577;  Rose  v.  Johnson,  Penn.  *5  ;  South  v.  Toomey,  Penn.  *98 ;  Ayres  v.  Her- 
bert, Penn.  *668 ;  Youngt  v.  Shough,  3  Or.  £7;  Mundy  v.  Ross,  S  Or.  466; 
Hetfidd  v.  Dow,  S  Dutch.  440  /  Joslin  v.  A.  J.  Oar  Spring  Co.,  7  Vr.  W  ; 
Saxton  v.  Landis,  1  Harr.  SOS  ;  Williams  v.  Doran,  8  C.  E.  Or.  S85 ;  Aliter, 
if  founded  on  a  new  consideration,  Kutzmeytr  v.  Ennis,  3  Dutch.  372 ;  Clark 
v.  Hall,  6  Hal.  78;  Heijield  v.  Dow,  S  Dutch.  440;  Cnwenhoven  v.  Howell,  7  Vr. 
3£3. 

37 


578  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Nixon  v.  Van  Hise. 


security  of  Vanhise  in  a  certiorari  bond,  and  the  judgment  was 
reversed  by  the  supreme  court.  At  the  time  Levi  Nixon  signed 
the  certiorari  bond,  and  at  subsequent  times,  he  undertook  and 
promised  Vanhise  that  he  would  indemnify  and  save  him  from, 
and  pay  all  costs  and  damages  to  which  he  had  already  or  should 
thereafter  be  put  by  any  suit  or  suits  brought  against  him  by  the 
constable  on  this  account.  The  constable  afterward,  December 
13th,  1817,  obtained  judgment  against  Vanhise  for  $44.37  dam- 
ages, and  $7.57  costs;  in  all,  $51.87.  Levi  Nixon  refused  to 
pay  these  costs  and  damages,  and  Vanhise  brought  this  suit  &c. 
There  was  a  hearing  in  the  absence  of  the  defendant,  and  judg- 
ment for  $52.37,  with  costs.  At  the  trial  two  witnesses  swore 
that  they  had  heard  "  the  parties,  in  the  presence  of  each  other, 
repeat  the  contract  substantially  as  set  forth  in  the  state  of  de- 
mand," and  that  Nixon  had  paid  Vanhise  "  one  dollar  for  that 
purpose,  promising  to  pay  him  such  further  sums  from  time  to 
*time  as  should  be  wanting,  or  he  should  be  obliged  to  pay  in 
consequence  of  said  agreement."  But  no  evidence  of  any  kind 
was  given  of  any  written  contract  between  the  parties. 

The  counsel  for  the  plaintiff  in  certiorari  objects  to  this  state 
of  demand  that  it  is  vague  and  uncertain,  and  is  founded  on  a 
parol  contract  to  answer  for  the  debt,  default  or  miscarriage  of 
another,  and,  therefore,  illegal.  Let  us  look  at  it.  Vanhise, 
without  any  promise  or  consideration  passing  from  Nixon  to 
him,  or  moving  him  thereto,  had  entered  into  a  written  contract 
lo  the  constable,  which  he  was  unable  to  perform.  His  failure 
subjected  him  to  suit  and  judgment.  After  this  had  been  done, 
after  the  contract  had  been  made,  broken  and  the  breach  pun- 
ished, a  third  person  comes  forward  and  promises  to  pay  the 
damages.  Is  this  promise  legal  and  binding  ?  Why  was  it 
made?  Did  any  consideration  justify  it?  (a)  I  see  none.  Was 
there  any  obligation  on  the  party  promising  to  bear  these  dam- 
ages ?  None  is  shown.  The  act  was  the  act  of  Vanhise ;  the 
contract  was  his ;  the  damages  were  laid  on  him.  Why  should 

(a)  See  Shepherd  v.  Lay  ton,  Perm.  *6 18;  Morford  v.  Vunck,  Perm.  *10SS ; 
jBigdow  v.  Pine,  Penn.  *52S  ;  Youngs  v.  Shough,  3  Or.  27 ;  Laing  v.  Lee,  Spen. 
S37. 

*492 


2  SOUTH.]  FEBRUARY  TERM,  1819.  579 


Nixon  ».  Van  Hise. 


Nixon  voluntarily  pay  them?  The  conaideration  vraspast;  the 
•default  was  that  of  another;  the  contract  should  have  been  in 
writing  to  have  made  it  binding. 

This  view  of  the  case  is  certainly  correct  unless  its  aspect  is 
changed  by  the  considerations  so  ingeniously  pressed  in  argument 
by  the  counsel  for  the  defendant.  1.  The  contract  made  by 
Vanhise  was  to  protect  and  relieve  the  defendant's  father,  and 
furnishes  a  moral  obligation  on  the  son  to  save  him  harmless, 
which  is  sufficient  consideration  to  support  the  contract,  (a)  But 
is  this  true  ?  Is  there  such  an  obligation  on  the  son  ?  I  think 
not.  It  is  not  every  benefit  rendered  in  this  way  to  a  father 
which  furnishes  a  consideration  to  support  a  legal  promise  in  the 
son.  But  if  it  were  so,  the  promise,  to  be  binding,  ought  to  pre- 
cede the  benefit  and  move  to  its  performance.  This  is  not  so  in 
the  case  before  us.  2.  This  contract  made  by  Vanhise,  which 
subjected  him  to  damage,  was  violated  through  the  act  of  Nixon, 
which  prevented  its  performance,  and  therefore  Nixon  could 
legally  promise  to  pay  the  damages  resulting  from  his  own  act. 
But  the  answer  is  still  true  that  the  consideration  of  Nixon's 
promise  was  already  past,  and  that  it  was  the  default  of  another. 
Besides,  whatever  interest  Nixon  had  in  the  violation  of  Van- 
Jiise's  engagement,  he  had  none  in  the  engagement  itself.  *On 
the  contrary,  it  was  an  undertaking  to  deliver  up  to  the  officer, 
to  be  sold,  goods  which  Nixon  claimed  as  his  own  property  —  a 
promise  to  deprive  Nixon  of  his  own  goods. 

I  think  the  judgment  on  such  a  state  of  demand  cannot  be 
supported. 

-  Judgment  reversed. 


(a)  Whether  a  moral  obligation  is  sufficient  consideration,  see  Wood  v. 
Ooxe  449  ;  Updike  v.  Titut,  £  Beat.  151  ;  Force  v.  Hainet,  £  Hear.  394  ;  Kear- 
ney v.  Kearney,  £  C.  E.  Or,  59;  Layton  v.  Cooper,  Pen*.  *65  ;  Youngs  v.  Shougk, 
JQr.£7;  Morgan  v.  Walton,  1  Harr.  417. 

*493 


580  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Roll  v.  Maxwell. 


BALTUS  ROLL  and  BROOKES  ROLL  v.  CALEB  MAXWELL  and. 
JON.  WOODRUFF,  overseers  of  the  poor  of  the  township  of 
Westfield. 

1.  Bond  to  indemnify  township  in  penalty  of  $500. 

2.  Judgment  must  be  entered  for  penalty,  and  justice  no  jurisdiction,  (a) 

3.  State  of  demand. 

4.  Unlawful  evidence. 

On  certiorari. 

The  case  is  stated  by  Justice  Southard. 

Halsey,  for  plaintiff. 

Chetwood,  for  defendant. 

SOUTHARD,  J. 

The  action  below  was  brought  upon  a  bond  given  by  the  de- 
fendants to  indemnify  the  township  of  Westfield  from  all  costs, 
charges  &c.  arising  from  the  birth  and  maintenance  of  Henry,  a 
bastard  child  of  Mary  January.  The  state  of  demand  sets  out  the 
bond,  the  penalty  of  which  was  in  the  sum  of  $500,  and  charges 
that  the  township  had  been  obliged  to  lay  out  and  expend  for 
the  birth  and  maintenance  of  the  child  the  sum  of  $39.25, 
which  is  claimed  by  the  defendants.  At  the  trial  the  bond  was 
presented  and  the  subscribing  witnesses,  who  were  inhabitants 
of  the  township  of  Westfield,  were  objected  to  by  the  defendant 
and  overruled  by  the  court.  An  offer  was  then  made  to  prove 
their  handwriting,  which  was  also  overruled.  The  justice  then 
admitted  proof  of  the  handwriting  of  the  obligors,  which  being 
proved,  the  bond  was  read  to  the  jury.  Testimony  was  then 

(a)  Webb  v.  Fish,  1  South.  871;  Tunison  v.  Cramer,  post  498;  Graecen  v. 
Allen,  2  Or.  74 ;  Schuyler  v.  Sylvester,  4  Dutch,  488 ;  Beatty  v.  Ivins,  Penn. 
*6S8  ;  Ordinary  v.  Hart,  5  Hal.  65;  Simmons  ads.  Kelly,  10  Vr.  441. 


SOUTH.]          FEBRUARY  TERM,  1819.  581 


Roll  r.  Maxwell. 


given  that  the  child  was  chargeable,  after  which  an  order  of 
John  Wilson,  Esq.,  for  the  relief  of  the  child,  a  paper  purport- 
ing to  be  a  demand  on  Roll  for  the  money  expended,  signed  by 
the  overseers,  and  three  receipts  given  by  different  persons  for 
money  which  they  had  paid,  were  severally  admitted  in  evidence 
after  the  handwritings  of  the  persons  subscribing  them  were 
proved,  and  that  a  copy  of  the  demand  on  Roll  had  been  served 
on  him.  No  other  evidence  of  the  expenditure  of  the  money 
was  given  *except  .that  one  person  who  had  signed  one  of  the 
receipts  had  the  care  of  the  child. 

The  jury  rendered  a  verdict  for  $34.50. 

Several  reasons  have  been  filed  and  relied  on  in  argument  for 
the  reversal  of  this  judgment.  I  will  consider  them  in  order. 

1.  The  suit  was  brought  upon  a  bond  to  indemnify  the  town- 
ship, in  the  penal  sum  of  $500,  for  which,  if  for  anything,  the 
judgment  must  be  entered ;  and  of  this  sum  the  justice  had  not 
jurisdiction. 

This  reason  turns  upon  the  question  whether  upon  a  bond  l^ke 
this  the  judgment  must  be  necessarily  entered  for  the  penalty. 
Our  statute  (Pat.  255  §§  5,  6,  7),  and  the  construction  put  upon 
the  statute  8  and  9  Wm.  III.,  of  which  ours  is  a  copy,  leave  no 
<loubt  on  this  subject.  The  judgment  can  be  entered  in  no  other 
way.  The  judgment  must  stand  as  security  for  future  breaches. 
This  being  so,  the  justice  had  no  jurisdiction.  He  could  not 
«nter  a  judgment  for  this  penalty.  He  erred  in  maintaining  the 
suit. 

2.  The  state  of  demand  was  insufficient.     The  state  of  demand 
merely  alleges  generally  that  the  township  "  had  been  obliged  to 
pay,  lay  out  and  expend,  for  and  toward  the  expenses  of  the  birth 
and  maintenance  of  the  said  child,"  $39.25  &c.     It  ought   to 
have  shown  how  and  when  the  money  had  been  expended.    The 
items  ought  to  have  been  set  out,  that  the  defendant  might  come 
prepared  to  combat  them. 

3.  The  bond  was  not  so  proved  as  to  make  it  competent  evi- 
dence.    The  error  committed  by  the  justice  here  was  in  listening 
to  the  objections  of  the  defendant  himself,  and  rejecting  the  sub- 
scribing witnesses  as  incompetent.     They  ought  to  have  been 

*494 


582  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Boll  v.  Maxwell. 


sworn  ;  their  interest  as  inhabitants  of  the  township  of  Westfield 
was  not  sufficient  to  exclude  them.  South.  186.  But  were  this 
the  only  error  of  the  justice  I  should  not  listen  to  the  objection 
from  the  mouth  of  the  defendant. 

4.  The  proof  of  the  handwriting  to  the  receipts  was  not  suf- 
ficient proof  of  the  expenditure  of  the  money.  This  is  so. 
Something;  more  was  necessary.  The  plaintiff  ought  to  have 
shown  that  the  expense  was  incurred,  and  then  have  proved  the 
payment.  The  receipts  would  have  been. competent  evidence- 
against  the  persons  signing  them,  but  were  not  so  against  Roll,  a 
third  party. 

I  think  there  ought  to  be  a  reversal. 

*KlEKPATRICK,  C.  J. 

Upon  the  first  question  stated  by  my  brother  Southard  I  agree 
with  him,  and  think  the  judgment  must  be  reversed. 

The  forty-first  section  of  the  act  constituting  these  courts  for 
the  trial  of  small  causes  says  that  when  a  bond  for  the  payment  of 
any  sum  of  money  above  $60  (now  $100)  shall  by  payment  or 
set-off  be  reduced  to  the  sum  of  $60,  or  under  (now  $100,  or 
under),  then  the  balance  shall  be  considered  as  the  real  debt, 
and  shall  be  recoverable  before  a  justice,  without  regard  to  the 
penalty  of  such  bond.  In  this  particular  case,  then,  the  act 
changes  the  whole  course  of  the  common  law  proceeding,  in  order 
to  give  the  greater  extent  to  this  jurisdiction ;  but  still  it  changes 
it  in  this  case  only,  that  is  to  say,  where  the  bond  is  for  the  pay- 
ment of  money  only. 

For  where  such  bond  is  conditioned  for  the  performance  of 
covenants,  or  for  indemnifying  and  saving  harmless  against  con- 
tingent damages,  losses  or  expenses,  as  is  the  case  here,  or  for 
any  other  thing  than  the  payment  of  money  only,  the  case  is  not 
within  the  words  of  this  section,  and  therefore  remains  as  here- 
tofore. The  judgment  is  then  entered  for  the  whole  penalty, 
and  execution  is  taken  from  time  to  time  for  the  particular  dam- 
ages found  by  the  jury  on  succeeding  breaches  ;  and  necessarily 
so,  as  has  been  already  stated,  for  it  is  contrary  to  the  whole- 
policy  of  the  law  to  put  the  party  to  a  new  action  for  every  suc- 

*495 


2  SOUTH.]          FEBRUARY  TERM,  1819.  583 


Hunt  r.  South. 


oeeding  breach  of  the  covenant,  or  item  of  the  damage,  against 
which  the  bond  was  intended  to  secure  him. 

Judgment  reversed. 


RICHARD  HUNT  v.  BENJAMIN  SOUTH,  (a) 
On  certiorari. 

This  case  was  argued  by  Ewing,  for  plaintiff,  and  Watt,  for 
defendant. 

The  opinion  of  the  court  given  by  Southard,  J. 

SOUTHARD,  J. 

The  parties  appeared  on  the  return-day  of  the  summons,  and 
the  justice  adjourned  the  cause  for  the  usual  time.  After  the 
adjournment  had  been  made,  but  on  the  same  day,  the  *plaintiff 
filed  his  state  of  demand.  On  the  day  of  trial  a  nonsuit  was 
moved  because  the  state  of  demand  was  not  filed  in  season,  and 
the  justice  overruled  the  motion.  In  this  I  think  he  erred.  The 
fourteenth  section  of  the  act  (Bloom.  55)  requires  the  plaintiff, 
on  or  before  the  return-day  of  the  summons,  to  deliver  his  copy 
of  account  or  state  of  demand,  and  in  default  thereof  to  be  non- 
suited. In  construing  this  act  we  must  not  forget  the  object  of 
the  legislature  in  this  provision,  which  was,  that  the  plaintiff 
should,  on  the  return  of  the  writ,  apprise  the  defendant  of  the 
claim  he  had  to  make  against  him.  This  object  is  totally  de- 
feated by  permitting  him  to  file  his  demand  after  the  adjourn- 
ment, after  the  parties  are  dismissed,  and  the  defendant  has 
retired.  The  day,  with  respect  to  the  cause,  is  ended  by  the 
adjournment;  all  matters  with  respect  to  it  cease  for  that  day; 
the  justice  ought  not,  therefore,  to  adjourn  the  cause  unless  the 
demand  is  filed ;  he  ought,  in  obedience  to  the  act,  to  enter  a 

(o)  See  Sanford  v.  Hoover,  Penn.  *99  ;  Jacknon  v.  Darcy,  Sax.  194. 

*496 


584  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Curtis  v.  Hulsizer. 


nonsuit.  If  this  be  not  the  course  defendants  are  ever  at  the 
mercy  of  plaintiffs,  and  may  be  kept  in  perfect  ignorance  of  the 
claim  against  them  until  after  they  are  obliged  to  file  their  pleas. 
This  will  not  do.  There  are  also  errors  in  the  account  filed,  but 
it  is  not  necessary  now  to  notice  them. 

Judgment  reversed. 


DAVID  CURTIS  v.  DAVID  HULSIZER,  late  constable. 

Constable  may  recover  from  plaintiff  in  attachment,  legal  costs  of  execut- 
ing the  writ,  where  defendant  has  no  property ;  but  not  expense  of  removing 
goods,  or  of  suit  brought  against  him  for  executing  writ  improperly,  (a) 


On  certiorari. 
Clarke,  attorney. 

SOUTHARD,  J. 

The  state  of  demand  sets  out  with  sufficient  precision  and  par- 
ticularity the  following  case:  Curtis  sued  out  an  attachment 
against  Joseph  Slack,  an  absconding  debtor ;  it  was  put  into 
Hulsizer's  hands  to  execute ;  in  virtue  of  it  he  took  certain  goods 
which  were  claimed  by  Ezra  Shamp,  who  sued  him  before  John 
Cavanagh,  Esq.,  for  taking  them,  which  suit  the  plaintiff  after- 
wards discontinued;  Hulsizer  then  called  three  juries,  one  after 
the  other,  to  try  the  property  in  the  goods.  The  first  two  juries 
disagreed  and  found  no  verdict ;  the  third  *declared  them  to  be  the 
property  of  Shamp.  Curtis  also  obtained  an  execution  against 
the  same  Joseph  Slack,  and  put  it  into  Hulsizer's  hands,  and  he 
returned  that  he  could  find  no  goods  or  person ;  and  he  avers 
that  at  the  special  instance  and  request  of  Curtis  he  paid  the 
fees  to  the  first  two  juries,  amounting  to  $3,  and  then  charges 
$1.80  for  summoning  the  juries,  $2.50  for  swearing  jurors  and 
witnesses,  $1.25  for  moving  the  property  attached,  and  swearing 
appraisers,  $2.50  for  his  time  and  expenses  in  the  suit  before  John 
(«;  See  Anonymous,  Spen.  112  ;  Hannessv.  Smith,  1  Zab.  496. 

*497 


2  SOUTH.]  FEBRUARY  TERM,  1819.  585 


Curtis  t.  Hulaizer. 


Cavanagh,  Esq.,  and  $3  for  his  costs  on  the  execution,  making, 
in  the  whole,  $14.05. 

The  verdict  and  judgment  were  for  the  amount  claimed,  and 
it  is  now  alleged  on  behalf  of  the  plaintiff  in  eertiorari,  that  these 
costs  cannot  be  recovered  against  him  because  the  fourteenth  sec- 
tion of  the  attachment  act  (Pat.  297),  provides  that  "  they  shall 
be  paid  out  of  the  estate  of  the  defendant  in  attachment,  if  the 
property  be  found  in  the  claimant,"  as  in  this  case. 

These  costs  are  created  by  the  officer  in  defending  himself  under 
the  provisions  of  the  act,  and  it  was  well  for  the  law  to  provide 
that  they  should  be  at  once  paid  out  of  the  defendant's  property. 
But  suppose,  as  appears  to  be  the  case  here,  that  the  defendant 
really  has  no  property,  how  are  they  then  to  be  paid  ?  Is  the  offi- 
cer to  lose  them  ?  Surely  not.  The  plaintiff  in  the  writ,  as  in 
every  other  case,  must  be  answerable  for  those  legal  costs  to  which 
the  officer  has  been  subjected.  Here  seems  to  have  been  a  special 
request  that  a  part  of  them  should  be  paid,  but  this  request  was 
not  necessary  to  support  the  plaintiff's  claim.  He  may  well 
recover  those  costs  which  the  law  has  fixed  in  such  cases. 

But  there  is  one  item  which  can  be  sustained  upon  no  legal 
principle  ;  I  mean  for  his  time  and  expenses  in  attending  the  suit 
before  John  Cavanagh,  Esq.  The  plaintiff  in  an  action  is  not 
legally  answerable  for  the  costs  and  damages  to  which  the  officer 
is  subjected  by  his  mode  of  executing  a  writ.  He  must  see  to  it 
that  he  executes  it  properly,  so  as  to  be  liable  to  no  one.  In  this 
case,  also,  the  law  declares  that  the  officer  "  shall  not  be  liable  to 
any  prosecution  for  having  attached  and  taken  any  goods  &c. 
through  ignorance  or  want  of  proper  information." 

*The  item,  also,  for  moving  the  goods  and  swearing  the  ap- 
praisers is  liable  to  objection.  The  law  gives  no  fee  to  the  officer 
for  removing  the  goods. 

As  the  judgment  is  for  these  items  as  well  as  the  others,  it  can- 
not stand. 

Judgment  reversed. 
*498 


586  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Tunison  v.  Cramer. 


HENRY  TUNISON  and  JOSIAH  BRIGGS  v.  MATTHIAS  CRAMER. 

1.  Bond  for  prison  limits  may  not  be  assigned  before  breach. 

2.  Walking  two  miles  out  of  limits,  breach  of  bond,  though  prisoner  return 
before  pursuit  or  action  brought,  (a) 

3.  Where  there  is  breach,  plaintiff  in  execution  cannot  recover  of  surety 
more  than  penalty  of  bond.  (6) 

On  certiorari. 

The  facts  are  stated  in  the  opinion  of  the  court.     The  cause 
was  argued  by  Vroom,  for  plaintiff  in  certiorari. 

Opinion  of  the  court. 

SOUTHARD,  J. 

On  the  19th  of  June,  1817,  Henry  Tunison  and  Josiah  Briggs 
entered  into  a  bond  to  the  sheriff  of  Hunterdon,  in  the  penalty 
of  $95,  conditioned,  that  as  the  said  Tunison  was  committed  a 
prisoner  to  the  gaol  of  Hunterdon  upon  a  judgment  and  execu- 
tion in  favor  of  Matthias  Cramer,  for  $95  debt  and  $3.05  costs, 
therefore,  if  the  said  Tunison  should  keep  within  the  bounds  of 
the  prison  of  said  county,  then  the  bond  to  be  void,  otherwise  to 
remain  in  full  force.  Under  the  allegation  that  Tunison  did  not 
keep  the  limits,  Cramer,  on  the  13th  of  December,  1817,  ob- 
tained an  assignment  of  this  bond  from  the  sheriff,  and  com- 
menced this  suit  against  Tunison  and  his  surety,  Briggs.  The 
cause  was  tried  on  the  30th  of  January,  1818,  and  at  the  trial 
the  execution  of  the  bond  and  of  the  assignment  was  admitted, 
and  two  witnesses  proved  that  they  had  seen  Tunison  at  a  store 
two  miles  from  the  limits,  about  eight  weeks  before.  The  sum- 
mons in  this  case  was  served  on  the  12th  of  January,  at  which 

(a)  Smith  v.  A Uen,  Sax.;  44  S.  C.,7Hal.  160;  Camp  v.  Allen,  7  Hal.  1;  see 
Stephens  v.  Tucker,  2  Or.  600. 

(b)  Roll  v.  Maxwell,  ante  49$;  Seatty  v.  Ivins,  Penn.  *628  ;  Lorfg,  Admr.,  v. 
Long,  1  C.  E.  Or.  59. 


2  SOUTH.]  FEBRUARY  TERM,  1819.  587 


Tunison  t>.  Cramer. 


tiiin  Tunison  was  upon  the  limits  and  so  continued  until  dis- 
charged under  the  insolvent  laws  on  the  23d  of  the  same  month, 
a  few  days  before  the  trial.  After  this  testimony  a  motion  was 
made  for  a  nonsuit  on  the  ground — 1.  That  it  had  not  been 
proved  that  Tunison  was  off  the  limits  before  the  assignment  of 
the  bond.  And  2.  That  'tin-  suit  was  not  sustainable,  because 
he  had  returned  within  the  limits  before  the  suit  was  brought. 
The  motion  being  overruled,  a  verdict  and  judgment  were  ren- 
dered for  $98.05  of  debt,  with  the  costs,  being  $3.05  more 
than  the  penalty  of  the  bond.  And  now  here,  the  plaintiffs  in 
certiorari  rely,  for  the  reversal  of  the  judgment,  as  well  on  the 
overruling  the  motion  for  a  nonsuit  as  on  the  fact  that  the  ver- 
dict and  judgment  are  illegal  because  for  too  large  a  sum.  Let 
us  look  at  each  of  them. 

1.  The   reason   and   nature    of  the   thing,   as   well   as   the 
construction   of  the   law   (Pat.   365  §  100\    require   that  the 
prisoner  should  have  broken  the  condition  of  his  bond  before 
the  sheriff  has  any  right  or  authority  to  assign  it ;  and  an  assign- 
ment made  before  such    breach  would   be   irregular.     But  this 
court  has  not  sufficient  evidence  before  it  to  show  that  this  reason 
is  founded  in  fact.     The  bond  was  assigned  on  the  13th  of 
December ;    the  prisoner  was  seen   off  the  limits  about  eight 
weeks  before  the  30th  of  January  following — not  quite  seven 
weeks   after  the   assignment.     The  terms   used,  "about  eight 
weeks,"  are  very  indefinite,  and  I  am  not  willing  to  say  that  in 
construing  them  the  court  below  erred. 

2.  The  prisoner  had  voluntarily  returned  before  action  brought, 
and,  therefore,  according  to  the  decision  in  Howard  and  Fiick 
v.   Blachford  et  a/.,   Penn.   777,   the   suit  is   not  sustainable. 
The  correctness  of  that  decision  will  not  here  be  questioned ; 
but  there  is  certainly  a  manifest  distinction   between  the  cases. 
In  the  case  cited,  the  prisoner  "  walking  within  the  limits  next 
and  adjoining  to  the  bounds  of  the  gaol  or  prison,  which  was 
terminated  by  an  imaginary  line,  casually,  accidentally,  and  by 
mistake,  walked  over  and  beyond  the  bounds  of  the  said  prison 
a  little  way,  to  wit,  the  distance  of  five  feet  and  no  more ;  and 
thereupon  and  immediately  thereafter,  and  without  any  pursuit 

*499 


588  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Tunison  v.  Cramer. 


or  retaking  &c.,  and  before  the  commencement  of  the  action, 
voluntarily  and  of  his  own  accord,  instantly  returned  within  the 
bounds  of  the  said  prison  and  the  custody  of  the  sheriff"  &c. 
And  the  court  adjudge  that  this  was  not  such  a  walking  out  of 
the  limits  as  to  forfeit  the  bond  and  authorize  a  recovery.  But 
is  this  the  case  under  consideration  ?  I  think  not.  The  walking 
out  of  Tunison  was  not  casual,  but  deliberate ;  not  accidental, 
but  by  design ;  not  by  mistake,  but  with  knowledge  and  pre- 
meditation ;  not  the  short  *distance  of  five  feet,  but  more  than 
two  miles.  If  this  be  not  such  an  act  as  violates  the  intention 
of  the  law  and  the  condition  of  the  bond,  I  know  of  none 
that  would.  If  a  man  may  deliberately  go  two  miles,  why  not 
five?  why  not  twenty?  why  not  to  the  extreme  end  of  the 
state  ?  nay,  beyond  it  ?  If  he  may  go  to  a  store,  why  not  trans- 
act any  other  business  ?  and  where  is  the  confinement  to  which 
he  is  subjected  ?  The  law  is  a  dead  letter  and  the  marking  out 
of  the  prison  limits  a  farce.  I  can  view  this  act  of  Tunison  in 
no  other  light  than  as  a  clear  and  intentional  infraction  of  the 
law  and  breach  of  the  condition  of  his  bond ;  and  I  think  the 
justice  decided  correctly  in  overruling  the  motion  for  a  nonsuit 
on  this  ground. 

3.  The  plaintiff  claims  $100,  and  in  his  demand  sets  out  the 
execution  of  the  bond,  its  penalty,  condition  and  assignment  as 
the  ground  of  his  claim,  and  demands  "the  said  sum  of  $100, 
the  principal  and  interest  on  said  bond  "  &c.  If  by  this  he  in- 
tended to  consider  the  penalty  as  a  sum  due,  to  which  he  was 
•entitled,  and  on  which  interest  could  arise,  he  is,  I  apprehend,  in 
an  error;  nor  if  it  were  so'would  the  difficulty  be  removed.  If 
it  be  a  sum  certain,  which  can  bear  interest,  at  what  period  must 
the  interest  commence?  Certainly  not  from  the  execution  of 
the  bond.  The  obligee  can  have  no  rights  under  it  until  a 
breach  of  the  condition ;  and  if  we  calculate  interest  from  the 
time  proved  when  the  breach  was  made,  it  will  not  amount  to 
the  sum  recovered.  The  amount  of  the  execution  on  which  the 
prisoner  is  confined  is  the  real  object  to  be  secured ;  and  the  law 
no  doubt  designed  that  when  the  bond  was  forfeited  the  principal, 
interest  and  costs  on  that  execution  should  be  recovered  by  the 

*500 


2  SOUTH.]  FEBRUARY  TERM,  1819.  589 


Wills  r.  M'Dole.' 


creditor ;  hence  it  directed  the  penalty  of  the  bond  to  be  double 
the  sum  for  which  he  was  committed  (Pat.  368),  and  this  bond 
is  faulty  in  not  having  been  taken  in  that  sum.  If  it  had  been, 
no  difficulty  would  have  arisen  on  this  point.  The  plaintiff 
might  safely  have  had  his  verdict  as  it  now  is,  for  the  amount 
and  interest.  But  as  it  was  not  taken  in  double  the  sum  for 
which  Tunison  was  committed,  but  only  in  the  sum  itself,  can 
more  be  recovered?  Can  we  go  beyond  what  Briggs,  the 
security,  has  agreed  to  pay  and  compel  him  to  pay  what  he  has 
not  agreed  to  ?  I  think  not.  His  case  is  not  that  of  a  bond  for 
money,  or  the  performance  of  a  collateral  act,  where,  in  some 
instances,  a  recovery  of  interest  has  been  allowed,  even  beyond 
*the  penalty  (1  Eq.  Cos.  Ab.  92;  2  Term  Rep.  388);  but  it  is  a 
specific  agreement  that  an  act  shall  be  done  under  a  specific 
penalty.  Who,  then,  has  a  right  to  enlarge  the  penalty,  and 
say  you  agreed  that  an  act  should  be  performed  or  you  would 
pay  $95,  but  you  shall  pay  $98  ?  We  might  as  well  make  him 
pay  $900,  or  any  other  sum.  He  may  well  tell  us  "  it  is  not 
within  my  bond."  I  think  the  verdict  and  judgment  are  for 
too  much  and  should  be  set  aside. 

Judgment  reversed. 


SAMUEL  WILLS  t;.  ROBERT  M'DoLE. 

Venire  may  not  issue  before  appearance  of  defendant ;  but  if  defendant  do 
not  appear,  jury  may  be  dismissed  and  justice  try  the  cause,  (a)  Original 
.mist  be  accounted  for,  and  copy  strictly  proved  before  it  can  be  read.  (6) 


On  certiorari. 
Watt,  for  plaintiff. 
Vroom,  for  defendant. 


(a)  Sutton  v.  Oolcman,  Perm.  *1S4  ;  Lummis  v.  Stratlo*,  Penn.  **46  /  Keen  T. 
ScuU,  Penn.  *544. 

(6)  Sterling  v.  Polls,  post  77S. 

*501 


590  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Wills  v.  M'Dole. 


Opinion  of  the  court. 

SOUTHARD,  J. 

Two  reasons  have  been  relied  on  for  the  reversal  of  this  judg- 
ment. 1.  Because,  after  a  venire  had  been  issued  and  the  jury 
summoned,  the  justice  dismissed  the  jurors  and  tried  the  cause 
himself.  2.  Because  a  paper  purporting  to  be  the  copy  of  the 
agreement  on  which  the  suit  was  founded  was  illegally  received 
in  evidence. 

1.  The  defendant  did  not  at  any  time  appear  before  the  jus- 
tice, but  the  plaintiff  requested  and  the  justice  issued  a  venire, 
which  was  regularly  served  and  the  jury  appeared  on  the  day  set 
for  the  trial.  The  issuing  of  this  venire  was  certainly  irregular, 
and  had  the  cause  been  tried  by  it  would  have  been  proper  ground 
for  reversal.  But  the  justice  seems  to  have  been  aware  that  he 
had  committed  a  blunder,  and  as  the  defendant  did  not  appear 
on  the  day  of  trial  he  conducted  the  cause  as  if  no  venire  had 
been  granted.  In  what,  then,  did  the  error  consist?  Not  in 
the  trial,  nor  in  the  judgment ;  they  were  both  legal,  but  in  a 
previous  proceeding  which  was  altogether  inoperative  and  de- 
prived the  party  of  none  of  his  rights.  With  the  exception  of 
issuing  this  writ  the  whole  proceedings  were  precisely  as  they 
should  have  been,  and  this  writ  was  rendered  a  nullity ;  it  had 
no  operation.  Ought  we,  then,  to  reverse  for  this  cause  ?  I  think 
not. 

*2.  This  action  was  founded  on  an  article  of  agreement  under 
seal,  and  a  paper  said  to  be  a  copy  was  received  in  evidence.  By 
the  transcript  and  an  amended  return  it  seems  that  there  was 
proof  at  the  trial  that  this  article  was  believed  to  be  in  the  hands 
of  a  certain  George  Forsyth,  who  was  an  agent  of  the  defendant, 
or  acted  as  such  ;  that  a  subpoena  was  served  on  Forsyth,  "  di- 
recting him  to  attend  the  trial,  and  bring  with  him  a  certain 
article  of  agreement,  then  in  his  hands,  between  the  parties  in  the 
suit ;  "  (a)  that  Forsyth  did  not  attend,  nor  send  the  article,  and 

(a)  Murray  v.  Elston,  8  C.  E.  Gr.  212  ;  see,  also,  The  Board  of  Justices  v.  Fen- 
nimore,  Coxe  242 ;  Watkins  v.  Pinkard,  Ooxe  378  ;  Clark  v.  Imlay,  7  Hal.  119  ; 
Moran  v.  Green,  1  Zub.  572,  note. 

*502 


2  SOUTH.]  FEBRUARY  TERM,  1819.  591 


Wills  t>.  M'Dole. 


one  witness  swore  that  he  believed  the  copy  of  the  article  offered 
was  the  handwriting  of  Forsyth.  This  article  was  an  important 
paper ;  it  was  the  foundation  of  the  plaintiff's  claim  and  the 
defendant's  liability.  It  was  necessary  that  it  should  have  been 
before  the  court  on  the  hearing,  or  that  a  copy  should  be  fur- 
nished about  the  correctness  of  which  no  doubt  could  exist.  No 
rule  of  law  should  be  disregarded  in  order  to  insure  its  admis- 
sion. Now,  the  law  as  to  the  admission  of  copies  of  writings  is 
clear,  and  has  been  violated  in  this  instance  in  two  respects. 

1.  It  was  not  satisfactorily  shown  that  the  original  could  not 
be  produced.  No  proof  was  given  that  it  was  not  in  the  plain- 
tiff's possession,  or  that  it  had  been  lost.  It  was  only  "  believed 
to  be  in  Forsyth's  possession."  And  why  believed  to  be  there  ? 
No  one  had  seen  it  there ;  it  had  not  been  entrusted  to  him  by 
the  parties ;  he  was  "  the  defendant's  agent,  or  acted  as  such." 
This  is  not  sufficient.  The  law  is  very  explicit ;  the  original 
must  be  accounted  for.  2.  The  copy  was  not  sufficiently  proved. 
No  one  had  examined  it,  as  a  copy,  nor  did  any  one  swear  to  the 
contents  of  the  original.  All  the  proof  was  that  it  was  believed 
to  be  in  Forsyth's  handwriting.  More  than  this  was  necessary 
to  justify  the  admission  of  a  copy.  It  must  be  clearly  shown 
to  be  a  copy.  The  justice,  therefore,  erred.  The  court  cannot 
help  regretting  this  conclusion,  for  the  whole  aspect  of  the 
cause,  the  neglect  of  the  defendant  to  attend  at  all  to  so  impor- 
tant a  matter ;  the  refusal  of  a  man  who  had  at  least  acted  as 
agent  and  was  supposed  to  have  the  writing,  to  attend  as  a  wit- 
ness, creates  a  pretty  strong  suspicion  that  the  principal  and 
agent  understood  each  other,  and  intended,  by  keeping  back,  to 
prevent  the  plaintiff  from  having  a  recovery.  But  be  this  as  it 
may,  the  law  has  been  violated  and  the  judgment  ought  to  be 
reversed. 


592  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Stevens  v.  Scudder. 


*JOHN  STEVENS  v.  JOHN  SCUDDER. 

Justice  may  not  grant  nor  common  pleas  receive  appeal  unless  bond  be 
legally  executed  before  first  term  after  judgment,  (a) 


On  certiorari.      .» 

This  writ  was  directed  to  the  common  pleas  of  Essex.  The 
case  is  stated  in  the  opinion  .of  the  court  by  Southard,  J. 

Scuddei*,  for  plaintiif. 
Chetwood,  for  defendant. 

SOUTHARD,  J. 

This  action  was  originally  brought  before  John  Mann,  Esq., 
of  Essex,  who  gave  judgment  in  favor  of  the  defendant  on  the 
15th  of  August,  1816.  The  plaintiff  demanded  an  appeal,  which 
was  granted,  and  made  returnable  to,  and  the  appeal  entered  and 
the  papers  filed  in  September  term,  1816.  The  appeal  was  not 
moved  for  trial  until  September  term,  1817,  when,  as  the  hearing 
progressed,  the  appellee  moved  to  nonsuit  the  appellant  because 
the  paper  purporting  to  be  the  appeal-bond  was  not  such,  having 
no  seals  to  it.  The  court  overruled  the  motion  and  gave  the 
appellant  time  to  perfect  the  bond ;  and  at  the  term  of  April, 
1818,  the  bond  was  again  presented  (with  seals  affixed),  filed, 
and  the  cause  heard,  the  judgment  of  the  justice  reversed,  and 
judgment  entered  in  favor  of  the  plaintiff  for  $11,  with  costs. 

(a)  The  State  v.  Judges  of  Bergen  Common  Pleas,  Penn.  *738 ;  Miller  v. 
Martin,  3  Hal.  201;  Tichenor  v.  Hewson,  2  Or.  26;  see  Lacy  v.  Ooxe,  3  Or. 
469  ;  Dyer  v.  Ijudlum,  1  Harr.  531 ;  Rodenbough  v.  Rosebury,  4  Zab.  491 ;  Nix. 
Dig.  467  I  47;  Pemne  v.  Cheeseman,  6  Hal.  195;  Qarrabrant  v.  McCloud,  3 
Or.  462;  Egbert  v.  Thatcher,  2  Or.  78 ;  Kennedy  v.  Congle,  2  Or.  82;  Watson 
v.  Marple,  3  Harr.  8  ;  Thorpe  v.  Keder,  3  Harr.  251 ;  Parke  v.  Hunt,  7  Hal. 
82;  Thompson  v.  Sutlon,  1  Hal  220. 

*503 


2  SOUTH.]  .         FEBRUARY  TERM,  1819.  593 


Stevens  r.  Scudder. 


Upon  these  facts  the  court  is  now  moved  to  reverse  the  judgment 
of  the  common  pleas.  By  the  33d  section  of  the  act  coasti- 
tuting  courts  for  the  trial  of  small  causes  (Bloom.  63\  it  is  pro- 
vided that,  except  in  certain  specified  cases,  either  party  may 
appeal  from  any  judgment  "  to  the  court  of  common  pleas  of 
the  county,  to  be  holden  next  after  the  rendering  of  such  judg- 
ment ;"  which  appeal  is  to  be  granted  by  the  justice  "  on  the 
following  and  no  other  terms,  that  is  to  say,  the  party  demand- 
ing such  appeal  shall  enter  into  bond  to  the  other  party  with  at 
least  one  sufficient  surety,  being  a  freeholder  in  the  county,  in 
double  the  sum  for  which  judgment  was  given,  conditioned  that 
the  appellant  shall  appear  and  prosecute  the  said  appeal  in  the 
said  court  &c.  &c.  The  section  next  succeeding  declares  that 
the  common  pleas  shall  have  cognizance  of  these  appeals  so 
taken,  and  directs  the  mode  of  trial.  These  sections  are  the  only 
foundation  on  which  appeals  rest.  They  authorize  the  justice  to 
grant,  and  the  common  pleas  to  receive  and  entertain  the  appeal. 
The  one  has  no  power  to  grant  nor  the  other  to  receive,  unless 
they  are  strictly  complied  with.  The  appeal  must  be  taken  to 
the  next  court  of  common  pleas ;  it  can  be  taken  to  *no  future 
term.  A  bond  in  double  the  judgment,  with  a  sufficient  surety, 
must  first  be  given.  Neither  court  has  power  to  do  anything 
until  that  bond  is  executed  and  tendered. 

What,  then,  is  the  present  case?  A  paper,  not  a  bond,  was 
presented  to  the  justice ;  he  received  it  and  allowed  the  appeal. 
He  erred.  The  common  pleas  ordered  the  appeal  to  be  entered 
and  the  papers  filed.  It  erred  not  less  than  the  justice.  Both 
acted  without  power  or  authority,  and  their  errors  must  be 
remedied. 

But  the  common  pleas  endeavored  to  remedy  their  own  error 
by  ordering  the  bond  to  be  perfected,  or  rather,  by  ordering  the 
bond  to  be  filed,  a  whole  year  after  the  appeal  was  entered.  It 
has  only  added  one  error  to  another.  It  had  no  such  power. 
The  order  was  made  in  a  case  which  was  really  not  before  it  at 
all,  which  had  no  existence  in  that  court.  Its  power  commences 
only  when  the  bond  has  been  filed  and  the  appeal  regularly 
made  to  it.  It  has  nothing  to  do  with  directing  the  bond  to  be 
*504  .38 


594  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Sutton  v.  Petty. 

.taken,  it  has  no  power  to  direct  its  proper  execution.  The  bond 
must  be  properly  executed,  the  appeal  must  be  applied  for, 
granted  and  tendered  to  the  pleas  at  the  first  term  after  the 
judgment  or  it  cannot  proceed  at  all.  All  it  has  to  do  is  to  re- 
fuse to  enter  the  appeal  and  file  the  papers,  and  its  duties  are  at 
an  end.  It  has  no  saving  powers  to  cure  the  inattention  and  in- 
dolence and  ignorance  of  suitors,  who  have  neglected  to  perform 
those  acts  necessary  to  give  it  jurisdiction. 

The  whole  proceedings  on  the  appeal  are  irregular  and  must 
be  set  aside. 


JOSEPH  SUTTON  v.  AARON  PETTY. 

1.  Written  evidence  does  not  necessarily  appear  on  the  transcript,  (a) 

2.  Juror,  though  above  sixty-five,  sworn  by  consent.  (6) 


On  eertiorari. 

SOUTHARD,  J. 

This  action  was  founded  on  an  agreement  in  writing  by  which 
Sutton  undertook,  in  consideration  that  Petty  would  surrender  to 
him  the  possession  of  a  certain  farm,  that  he  would  pay  to  Petty 
"  whatever  sum  "  certain  "  arbitrators  "  therein  named,  "  might 
award  for  Benajah  Gustin  to  pay  to  him,  provided  the  said  Gustin 
should  fail  to  pay  "  the  same.  The  state  of  demand  alleges  that 
Petty  did  surrender  the  possession  ;  that  *the  referees  reported 
that  Gustin  should  pay  $63.83  as  damages;  that  a  judgment  had 
been  entered  on  the  report  for  the  damages  and  $21  32  costs,  exe- 
cution issued  thereon  and  the  writ  returned ;  that  Gustin  denied 
having  any  property,  and  the  plaintiff  claims  the  amount  of 
damages  and  costs.  The  cause  was  tried  by  a  jury  and  verdict 
rendered  for  $85.15. 

(o)  Manning  v.  Randolph,  1  South.  146 ;  Cosher  v.  Peterson,  1  South.  318 ; 
Ramsey  V.  Dumars,  4  Han-.  66. 
(b)  See  Den  v.  Lardner,  Coxe  220. 

*5Q5 


2  SOUTH.]  FEBRUARY  TERM,  1819.  595 

Button  v.  Petty. 

The  counsel  for  the  plaintiff  in  ctrtiorori  has  relied  on  four 
reasons  for  reversal. 

1.  That  the  award  made  by  the  arbitrators  was  not  in  evidence 
on  the  trial,  nor  any  legal  evidence  of  it.     To  this  I  think  it  is 
•satisfactorily  answered  that  it  does  not  appear  that  the  award  was 
not  before  the  jury.     The  justice  is  not  bound  to  enter  the  writ- 
ten evidence  on  his  docket,  and  because  it  is  not  noted  we  do  not, 
therefore,  infer  that  it  was  not  received.     Besides  being  the  best 
•evidence  of  the  amount  of  the  plaintiff's  claim,  the  presump- 
tion is  that  it  was  given,  a  presumption  only  to  be  rebutted  by  a 
positive  certificate  of  the  justice  to  the  contrary. 

2.  The  undertaking  was  collateral ;  the  defendant  was  only  to 
pay  in  case  Gustin  failed.     The  evidence  of  his  failure  was  not 
full  and  sufficient.     Answer — Whether  evidence  was  sufficient 
was  for  the  jury  to  determine,  and  I  think  they  determined 
rightly.     The  execution  and  return  of  it  were  good  proof. 

3.  The  contract  is  to  be  construed  strictly ;  he  was  bound  only 
for  the  damages  which  should  be  awarded ;  but  the  judgment 
goes  further,  and  comprehends  also  the  costs.    I  answer,  we  have 
not  the  award  before  us  and  cannot,  therefore,  tell  whether  it  re- 
quires Gustin  to  pay  the  costs.     If  it  did,  Sutton  must  also  pay 
them,  for  he  is,  by  his  agreement,  to  pay  whatever  sum  should 
be  awarded.     The  entry  of  judgment  against  Gustin  for  the 
damages  and  costs  affords  a  fair  inference  that  the  award  included 
costs. 

4.  Nicholas  Cox,  one  of  the  jurors,  was  above  the  age  of 
sixty-five  years,  but  the  parties  agreed  that  he  should  sit  upon 
the  jury. 

This  agreement  and  the  swearing  of  this  juror,  I  consider 
altogether  erroneous.  Parties  have  a  perfect  right  to  have  their 
causes  tried  by  men  of  their  own  choosing,  but  then  it  must  be 
as  arbitrators  or  referees.  If  tried  by  a  jury,  the  members  of 
that  jury  must  have  the  legal  qualifications.  No  consent  or 
agreement  *of  parties  can  give  these  qualifications.  The  law 
has  very  plainly  pointed  them  out,  and  neither  courts  nor  parties 
have  a  right  to  disregard  them.  If  they  may  be  waived  or  dis- 
regarded in  one  instance,  they  may  in  every  other.  If,  byagree- 

*506 


596  NEW  JEESEY  SUPKEME  COURT.     [5  LAW 

Sutton  v.  Petty. 

merit,  a  man  above  sixty-five  years  may  serve,  one  who  is  under 
twenty-one,  of  kin  to  the  parties,  or  not  a  freeholder,  may  in 
like  manner.  The  law  ought  not,  in  this  way,  to  be  rendered 
nugatory.  Had  this  man  been  sworn  on  the  jury  without  a 
knowledge  of  his  disqualification  by  the  court  and  parties,  the 
judgment  ought  to  stand.  The  law,  for  obvious  and  wise  rea- 
sons, would  leave  the  verdict  untouched.  But  this  is  not  the 
case  where  it  is  knowingly  violated.  I  am  therefore  in  favor  of 
reversing  the  judgment. 

KlRKPATRICK,  C.  J. 

With  respect  to  the  juror  who  was  said  to  be  above  the  age  of 
sixty-five,  the  justice,  in  his  return,  merely  says,  "Mr.  Nicholas 
Cox  was  agreed  to  as  a  juror  by  the  parties,  though  above  the 
age  of  sixty-five." 

The  act  of  1797,  relative  to  juries  and  verdicts,  enacts :  "  That 
every  juror  who  shall  be  returned  upon  trial  of  issues  in  the 
supreme  court,  or  in  any  of  the  circuit  courts,  or  before  any  jus- 
tice or  justices  of  assize,  or  in  any  of  the  inferior  courts  of  com- 
mon pleas,  shall  be  above  the  age  of  twenty-one  and  under  the 
age  of  sixty-five  years  &c.  And  if  any  juror  who  is  not  so 
qualified  shall  be  summoned  upon  an  issue  in  any  of  the  courts 
in  this  section  specified,  it  shall  be  a  good  cause  of  challenge  to 
such  juror,  who  shall  be  discharged  upon  such  challenge  being 
verified  and  substantiated  according  to  law,  or  on  his  own  alle- 
gation, and  oath  or  affirmation  in  support  thereof;  provided  such 
challenge  be  taken  before  he  is  sworn  or  affirmed." 

It  has  been  doubted,  and  not  without  reason,  whether  this  act 
at  all  prescribes  the  qualifications  of  jurors  to  be  summoned  in 
the  justices  courts,  and  whether  it  does  not  rather  leave  them 
upon  the  principles  of  the  ancient  law.  But  suppose  it  to  apply 
equally  to  those  as  to  the  courts  mentioned  in  the  act  itself,  yet 
does  it  apply  in  this  case?  The  age  of  this  juror  seems  to  have 
been  known  to  the  parties,  and  perhaps  also  to  the  justice,  or  at 
least  to  have  been  suspected  by  them  ;  but  there  is  no  challenge 
by  either  of  the  said  parties  in  the  suit ;  no  verification  of  the 
fact ;  no  allegation  by  the  juror ;  and  much  less  any  oath  or 


2  SOUTH.]         FEBRUARY  TERM,  1819.  597 

Vantyl  t>.  Marsh. 

affirmation  of  his  being  above  the  lawful  age.  What,  then,  \va.s 
to  be  done?  *  Was  the  justice  to  discharge  him  upon  his  own 
private  knowledge,  or  was  he  to  seek  for  witnesses  to  disqualify 
him?  Surely  not. 

Concurring,  therefore,  with  my  brother  Southard  in  the  other 
reasons,  but  differing  in  this,  I  think  the  judgment  must  be 
affirmed. 

ROSSELL,  J.,  concurring  with  the  chief-justice,  judgment  was 
affirmed. 


JOHN  Y.  VANTYL  v.  ISAAC  MABSH. 

Justice  has  not  jurisdiction  in  an  action  on  the  case  for  overflowing  land,  to 
the  permanent  injury  of  the  freehold,  (a) 


On  certiorari. 

This  cause  was  argued  by  Hornblower,  for  plaintiff,  and  Scud- 
der,  for  defendant.  The  case  is  stated  by  the  court. 

SOUTHARD,  J. 

This  was  an  action  on  the  case  brought  by  Marsh  against  Vantyl 
for  erecting  and  keeping  up  a  mill-dam  on  the  river  Rahway,  by 
means  whereof  the  waters  of  the  river  were  flowed  back  upon 
the  lands  whereof  said  Marsh  "  had  a  tenancy  in  fee-simple,"  so 
that  "  the  grass,  wood,  timber,  bushes  and  shrubs  standing  on 
the  aforesaid  tenancy  of  land  were  corrupted,  spoiled  and  de- 
stroyed," so  that  the  said  Marsh  "  lost  the  use,  profit  and  advan- 
tage of  said  tenancy  of  land  "  &c. 

(a)  Blackwll  v.  Lctlie,  1  South.  119 ;  Blackwell  v.  Hagerman,  Pmn  *103S; 
Gregory  v.  Kanouse,  6  Hal.  62;  Hill  v.  Carter,  1  Harr.  87  ;  Dixon  v.  Scott,  S 
Harr.  4SO ;  Cnmpfield  v.  Johnson,  1  Zab.  83 :  Dickerson  v.  Wadsvorth,  4  Vr. 
•357;  see  Satterthwaite  v.  Morgan,  Pcnn.  *96£ ;  Hankinton  v.  Baird,  1  Hal  ISO; 
Hunt  v.  Afoirw,  7  Hal.  175  ;  Pickle  v  CWnAown,  1  South.  319. 

*507 


598  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Vantyl  v.  Marsh. 

The  only  reason  assigned  for  the  reversal  of  the  judgment  is,, 
that  the  court  for  the  trial  of  small  causes  had  not  jurisdiction 
of  the  cause.  And  I  think  the  objection  well  taken.  Thia 
action  is  distinguishable  from  the  ordinary  action  of  trespass- 
upon  land  by  the  tenant  in  actual  possession.  It  may  be  main- 
tained by  the  tenant  in  fee,  who  is  out  of  the  possession,  on  his- 
right  to  the  estate  and  for  the  permanent  injury  to  the  freehold., 
In  it  the  plaintiff  sets  out  his  title  as  tenant  in  fee,  and  he  must 
prove  it  as  set  out.  He  must  show  what  his  title  is.  2  Saun. 
206,  207.  Even  if  the  plaintiff  here  had  not  set  out  his  title  iu> 
his  state  of  demand  or  declaration,  yet  would  he  have  been  com- 
pelled to  exhibit  it  on  the  trial.  The  injury  he  complains  of  is 
not  to  the  possession  merely  ;  it  is  to  the  freehold ;  to  the  estate  ; 
and  is  altogether  unlike  the  taking  away  or  destroying  fence,, 
grass  &c.  *The  title  here  must  come  in  question,  and,  there- 
fore, the  justice  had  not  jurisdiction. 

KlRKPATKICK,  C.  J. 

I  think  this,  judgment  must  be  reversed  upon  the  ground  that 
the  justice  had  not  jurisdiction  of  the  subject-matter.  He  had 
not  jurisdiction — 1.  Because  the  title  to  land  necessarily  came 
in  question,  and,  therefore,  he  is  restrained  by  the  express  pro- 
vision of  the  statute.  And  2.  Because  exercising  a  special 
jurisdiction,  created  by  statute,  his  mode  of  proceeding  must  bo- 
according  to  the  rules  prescribed  by  statute ;  he  can  neither  vary 
from  them  nor  go  beyond  them ;  and  having  no  power  given  to 
him  to  order  a  view  of  the  land,  which  in  cases  of  this  kind 
may  be,  and  frequently  is  necessary,  he  is  restrained  by  construc- 
tion of  law ;  for  it  never  can  be  intended  that  a  citizen  is  to  be- 
deprived  of  his  lawful  rights  or  means  of  defence  without  ex- 
press words  to  take  them  away. 

ROSSELL,  J.,  concurred. 

Judgment  reversed. 
*508 


2  SOUTH.]  FEBRUARY  TERM,  1819.  599 


Miller  v.  Miller. 


ELIPHALET  MILLER  v.  LUKE  MILLER  and  J.  B.  MILLER. 

1.  In  action  on  judgment,  costs  of  execution  may  be  joined  to  the  judg- 
ment. 

2.  Transcript  of  justice  admissible  in  evidence  without  proof  of  his  hand- 
writing, (a) 

3.  Imprisonment  of  the  body  on  ca.  «a.  prtma  facie  satisfaction  of  the  judg- 
ment (6)          ,  , 

On  certiorari. 

This  was  an  action  of  debt  upon  a  judgment  obtained  by 
Luke  and  John  Miller  against  Eliphalet  Miller,  before  Abraham 
Reynolds,  Esq.,  of  Essex. 

Halsey  argued  for  plaintiff. 
Homblower,  for  defendant. 

SOUTHARD,  J. 

Two  reasons  are  relied  on  for  the  reversal  of  this  judgment. 
1.  That  the  state  of  demand  is  unlawful,  uniting  matters  which 
cannot  be  joined  together.  The  state  of  demand  sets  out  the 
judgment  and  the  amount  of  it,  and  then  adds:  "The  defend- 
ant is  further  indebted  to  the  plaintiff  in  $2.18,  it  being  the  costs 
which  the  defendant  subjected  the  plaintiff  to  in  obtaining  pro- 
cess on  said  judgment,  which  the  defendant  fraudulently  evaded." 
It  is  the  joining  of  this  item  to  the  judgment  of  which  the 
plaintiff  in  certiorari  complains ;  but  I  do  not  perceive  for  what 
good  reason.  I  understand  the  item  to  be  the  *costs  of  the  exe- 
cution issued  upon  the  judgment  by  Justice  Reynolds,  and  on 
which  the  money  was  not  made.  And  if  this  be  so,  it  is  both  a 
proper  claim  and  well  joined  in  this  action. 

(o)  Den  v.  Dovmam,  1  Or.  1S6;  Alien  ads.  Craig,  2  Or.  lit;  Bracer  v. 
Porch,  S  Harr.  S77 ;  Idle  v.  Idle,  6  Hal.  9S ;  Russell  v.  Work,  6  Vr.SIS; 
Henry  v  Campbell,  4  Zab.  HI. 

(6)  Strong  v.  Linn,  pott  799;  Allen  ads.  Craig,  *  Or.  10£ ;  David  T.  Blun- 
dell,  11  Vr.  S7G. 

*509 


600  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Vanauken  v.  Wickham. 


2d  reason.  That  the  transcript  of  the  justice  (under  his  hand 
and  seal)  was  admitted  without  proof  of  his  handwriting.  I 
do  not  think  proof  necessary.  I  think  the  character  of  the 
court,  the  nature  of  the  transcript  and  the  words  of  the  statute 
establishing  the  court  render  it  competent  evidence  without  such 
proof. 

Neither  of  the  reasons,  therefore,  is  sufficient  for  reversal ;  but 
there  is,  on  the  face  of  the  transcript,  that  which  ought  to  have 
prevented  a  judgment  upon  it  unless  in  some  way  satisfactorily 
explained,  and  I  find  no  such  explanation.  It  has  these  words  : 
"  Issued  execution  directed  to  S.  Morehouse,  constable,  who  did, 
on  the  14th  December,  1816,  return  the  sheriff's  receipt  for  the 
body  of  the  defendant."  This,  then,  is  a  suit  brought  upon  a 
judgment,  on  which  a  ca.  sa.  had  been  issued,  and  the  body  of  the 
defendant  taken  and  imprisoned.  The  execution  of  this  ca.  sa. 
is  prima  fade  evidence  of  the  payment  and  satisfaction  of  the 
judgment.  And  the  legal  conclusion  arising  from  the  fact  is  not 
rebutted,  for  no  witness  was  sworn  or  other  evidence  given.  It 
does  not  even  appear  that  the  defendant  had  in  any  way  been 
liberated  from  confinement.  I  am  therefore  in  favor  of  reversal. 

KIRKPATRICK,  C.  J. 

The  imprisonment  of  the  body  upon  a  ca.  sa.  is,  prima  facie, 
Satisfaction  of  the  judgment. 

BY  THE  COURT.     Let  judgment  be  reversed. 


DANIEL  VANAUKEN  v.  GEORGE  D.  WICKHAM. 

State  of  demand  in  trover,  (a) 

(a)  Besherer  v.Swisher,  Penn.  *74$  ;  Green  v.  Lawrence,  Penn.  *849 ;  Earle 
v.  Vanburen,  2  Hal.  344;  Debow  v.  Titus,  5  Hal.  128;  Glenn  v.  Garrison,  2 
Harr.  1 ;  Mount  v.  Cubberly,  4  Harr.  124  ;  West  Jersey  Railroad  do.  v.  Trenton 
Oar  Works  Co.,  3  Vr.  517;  Van  Dyk  v.  Dodd,  1  Hal.  129;  Gould  v.  Brown,  4 
Hal.  165. 


2  SOUTH.]          FEBRUARY  TERM,  1819.  601 

Conine  ».  Scoby. 
On  certiorari. 

Opinion  of  the  court. 

ROSSELL,  J. 

This  was  an  action  of  trover  and  conversion.  The  trial  was 
by  jury,  who  found  a  verdict  in  favor  of  Wickham  for  $60,  with 
costs,  for  which  judgment  was  given  by  the  justice.  Two  rea- 
sons are  assigned  for  the  reversal  of  this  judgment.  1.  Because 
the  declaration  does  not  sufficiently  de*scribe  the  goods  &c.  2. 
That  it  appeared  in  evidence  that  the  defendant  below  purchased 
the  oxen  in  question  at  a  constable's  vendue.  The  state  of  de- 
mand sets  forth  that  the  plaintiff,  being  the  owner  and  in  pos- 
j^ession  of  a  pair  of  oxen  of  the  value  of  $100,  lost  the  same,  and 
that  the  said  oxen  were  found  by  the  defendant,  who  converted 
them  to  his  owu  use,  although  he  well  knew  them  to  be  the 
property  of  the  plaintiff,  who  had  often  requested  said  defendant 
to  deliver  them  to  him,  which  he  had  refused  to  do  <fec. 

One  of  the  principal  reasons  why  this  .action  is  preferred  to 
that  of  detinue  is,  that  less  particularity  is  required  in  describing 
the  chattel  for  the  detention  of  which  the  owner  claims  damages 
only,  and  not  the  thing  itself,  and  this  state  of  demand  is  suffi- 
ciently certain  for  that  purpose. 

The  second  reason  is  not  supported  by  the  original  or  amended 
return  of  the  justice  nor  in  any  other  way.  I  therefore  see  no 
reason  for  the  reversal  of  this  judgment.  Let  it  be  affirmed. 


JOHN  CONINE  t;.  ALEXANDER  SOOBY.  (a) 

On  certiorari. 

(a)  See  Den,  Intkctp  v.  Leeony,  Ooze  111;  Russel  v.  Work,  6  Vr.  S16 ;  Von 
Dyke  v.  Bastedo,  3  Or.  324  ;  Van  Daren  v.  Horton,  1  Dutch.  SOS ;  Smock  T. 
Throckmorton,  3  Hal.  216;  Dnviston  v  Gardner,  5  Hal.  S89  ;  Carhart  v.  Miller, 
post  57S;  Ward  v.  Ward,  S  Zah.  699;  Hopper  ad*.  Chnmhtrlnin  5  Vr.  Ml. 

*510 


602  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Conine  v.  Scoby. 
ROSSELL,  J. 

On  examining  the  transcript  of  Justice  Drake  and  the  accom- 
panying papers  it  appears  that  two  summonses  were  issued  on 
the  same  day — the  15th  of  September,  1817 — one  by  Justice 
Babbit,  at  the  suit  of  Conine  against  Scoby,  returnable  on  the 
22d  of  the  same  month  ;  the  other  by  Justice  Drake,  at  the  suit  of 
Scoby  against  Conine,  returnable  on  the  20th,  two  days  previous 
to  the  one  first  mentioned ;  that  on  the  20th  the  parties  ap- 
peared before  Justice  Drake ;  the  plaintiff  filed  a  statement  of  his 
demand  and  the  defendant  his  plea  ;  the  plaintiff  prayed  an  ad- 
journment until  the  27th  instant,  which  was  granted,  and  on 
that  day  the  parties  again  appeared  and  the  cause  was  adjourned 
until  the  1st  of  October,  at  the  request  of  the  defendant,  and  on 
his  promise  to  pay  the  cost  of  the  day  and  to  produce  a  paper  in 
his  possession,  belonging  to  the  plaintiff,  and  called  in  his  decla- 
ration an  order  or  bill  of  exchange,  and  on  which  this  action 
was  founded. 

*That  on  the  1st  of  October  the  third  meeting  of  the  parties 
before  Justice  Drake  took  place,  and  after  the  jury  had  been 
severally  qualified  and  the  plaintiff  had  stated  his  demand,  arising 
on  the  order  above  mentioned,  the  defendant  produced,  under  the 
hand  and  seal  of  Justice  Babbit,  a  transcript  from  his  docket,  by 
which  it  appeared  that  on  the  22d  of  September,  two  days  after 
the  same  parties  had  been  before  Justice  Drake,  they  appeared 
before  him,  and  the  plaintiff,  Conine,  filed  a  statement  of  his 
demand  and  the  defendant,  Scoby,  his  plea.  The  cause  was  then 
adjourned  until  the  26th  instant,  at  which  time  they  again  ap- 
peared ready  for  trial.  The  defendant  admitted  the  plaintiff's 
demand  and  then  called  a  witness  to  prove  the  order  mentioned 
in  his  plea.  This  was  objected  to  by  the  counsel  for  the  plain- 
tiff and  rejected  by  the  justice,  who  gave  a  judgment  in  favor  of 
the  plaintiff  for  $7.56.  On  this  transcript  the  defendant  now 
prayed  a  nonsuit,  which  motion  was  overruled  by  the  justice — 
Drake — and  the  trial  went  on.  The  witnesses  of  both  parties 
were  examined  and  verdict  and  judgment  entered  in  favor  of 
plaintiff  for  $23.23.  In  this  there  was  error.  The  question  of 
debt  had  already  been  decided  between  the  parties  by  Justice 

*511 


2  SOUTH.]  FKHRUARY  TERM,  1819.  603 


Smith  v.  Johnson. 


Babbit,  by  their  consent,  and  should  have  estopped  the  after- 
proceedings.  Justice  Babbit  might  have  erred  in  rejecting  the 
testimony  offered  by  the  defendant  before  him  to  prove  the  con- 
tents of  the  bill  in  the  hands  of  the  plaintiff,  but  until  his  judg- 
ment could  have  been  got  rid  of  the  parties  were  concluded  by  it. 
The  judgment  of  Justice  Drake  must  therefore  be  reversed. 


MERRIMAN  SMITH  v.  ANDREW  JOHNSON. 

Fees  of  officers  and  witnesses  received  by  clerk  may  be  recovered  from  him 
in  action  of  debt,  but  party  must  show  that  defendant  was  convicted  and  sen- 
tenced, (a) 

On  certiorari. 

ROSSELL,  J. 

This  action  was  brought  to  recover  the  fees  alleged  to  be  due 
to  the  plaintiff,  Johnson,  who  had  been  a  constable,  for  serving 
state  process,  which  fees,  it  was  said,  had  been  received  by  Smith, 
the  defendant,  who  is  clerk  of  the  county  of  Salem.  If  the 
clerk  has  actually  received  fees  for  services  rendered  by  the  of- 
ficers of  the  court  or  for  attendance  as  jurors  or  witnesses,  there 
cannot  be  a  doubt  but  he  is  liable  to  an  action  for  retaining 
them.  But  this  receiving  and  retaining  of  them  must  be  estab- 
lished according  to  the  known  rules  of  law.  How  stands  this' 
case  ?  The  state  of  demand  sets  out  that  the  constable  had 
served  state  process  in  the  case  of  State  v.  R.  Berry,  the  fees 
amounting  to  $3.60 ;  in  that  of  R.  Bradley,  to  the  amount  of 
eighty-five  cents,  and  in  the  case  of  J.  Benson,  eighty-five  cents  ; 
and  he  relied  on  the  testimony  of  R.  Craven,  late  sheriff,  to  prove 
that  the  defendant  had  received  the  above  fees.  The  justice  has 
entered  the  testimony  of  Sheriff  Craven  in  these  words :  "  I 
have  paid  fees  over  to  the  defendant,  which  I  have  received 

(a)  See  Molt  v.  Fettit,  Coze  t98. 

*512 


604  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Smith  •<•.  Johnson. 


from  the  officers  of  the  state  prison,  I  believe  all  that  was  to  be 
paid  over.  I  took  some  of  the  persons  mentioned  in  the  state 
of  demand  to  the  state  prison  after  they  were  convicted."  On 
this  testimony  and  that  of  another  witness  on  the  part  of  the 
plaintiff,  who  swore  that  he  believed  the  book  in  which  the  above 
charges  were  entered  was  the  plaintiff's  original  book  of  entries ; 
the  jury  found  a  verdict,  and  judgment  was  entered  for  $4.45, 
with  costs. 

On  this  state  of  the  case  it  does  not  appear  to  me  there  was 
proof  that  the  fees  prosecuted  for,  or  any  part  of  them,  came  to 
the  hands  of  the  defendant.  And  the  motion  for  a  nonsuit  ought 
to  have  been  sustained  by  the  justice ;  this  not  being  done,  the 
judgment  must  be  reversed. 

KIRKPATRICK,  C.  J. 

From  the  many  complaints  I  have  heard,  I  am  inclined  to  be- 
lieve that  the  money  drawn  from  the  treasury,  in  cases  of  this 
kind,  does  not  very  regularly  come  to  the  hands  of  those  infe- 
rior officers  to  whom  it  justly  belongs.  I  should  therefore  be 
willing  to  go  pretty  far  to  support  claims  of  this  sort.  But 
here  the  evidence  (for  the  justice  has  sent  up  the  whole  evidence) 
is  so  entirely  defective  that  the  judgment  must  be  reversed. 

SOUTHARD,  J. 

There  is  no  legal  evidence  of  the  conviction  of  the  defendants 
in  the  several  criminal  cases,  nor  proof  that  the  clerk  really  re- 
ceived the  fees. 

Judgment  reversed. 


2  SOUTH.]          FEBRUARY  TERM,  1819.  605 


Oliver  r.  Larzaleer. 


*KELSEY  OLIVER  v.  JACOB  LARZALEER. 
On  certiorari. 
This  case  was  argued  by  Scudder,  for  plaintiff. 

SOUTHARD,  J. 

This  action  was  brought  by  Larzaleer  for  two  penalties  under 
the  act  concerning  inns  and  taverns.  Pat.  238  §  17.  He  de- 
mands $8  for  two  violations  of  the  statute  on  the  8th  of  October, 
1818.  The  first,  in  charging  him  thirty-one  and  a  half  cents 
for  a  half  pint  of  brandy ;  the  second,  in  demanding  and  charg- 
ing seventy-five  cents  for  his  horse  being  in  the  stable  two  hours, 
no  hay  having  been  ordered  for  him.  Several  objections  were 
taken  to  the  legality  of  pleadings,  trial  and  judgment.  Two 
only  seem  worthy  of  notice — 1.  That  the  title  of  the  statute  was 
not  endorsed  on  the  process,  (a)  This  is  required  by  the  second 
section  of  the  act  relative  to  suits  by  common  informers.  Its 
omission  is  error.  2.  The  process  was  a  warrant  and  not  a 
summons.  In  ordinary  cases  the  defendant  in  such  actions  can- 
not be  held  to  bail,  and  where  this  is  the  case  a  summons  must 
be  used.  This  error  was  objected  to  before  the  justice,  and  ought 
not  to  have  been  disregarded. 

KIRKPATRICK,  C.  J.     The  judgment  is  in  figures.  (6) 

ROSSELL,  J.,  concurred  in  reversal. 

Judgment  reversed. 

(a;  Nix.  Dig.  748  $  X16 ;  Miller  v.  Stay,  ante  477. 

(b)  dole  v.  Petty,  Pom.  *60  ;  Robiruon  v.  Applegale,  6  Hal.  178  ;  Berrian  T. 
The  Stale,  t  Zab.  S8. 

*513 


606  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Mairs  v.  Sparks. 


LEWIS  MAZES  v.  JULIANN  SPAEKS. 

1.  Possession  in  plaintiff  necessary  to  maintain  forcible  entry  and  detainer,  (a) 

2.  Where  plaintiff  claims  under  a  lease,  defendant  may  show  by  parol  that 
the  lease  was  surrendered.  (6) 

3.  Writ  of  certiorari  may  be  allowed  before  judgment,  to  be  used  after  it.  (c) 

4.  Certiorari  operates  as  superseded*,  (d) 

5.  Costs  trebled  by  multiplying  by  three,  (e) 


In  forcible  detainer. 

This  certiorari  was  brought  to  remove  into  this  court  the  pro- 
ceedings and  judgment  in  an  action  for  forcible  detainer,  to  obtain 
the  possession  of  a  house  and  lot  of  .land  in  the  town  of  Salem. 
Seven  reasons  were  offered  for  reversing  the  judgment.  The 
cause  was  argued  by  Crane,  Scott  and  R.  Stockton,  for  the  plain- 
tiff. Jejfers,  who  was  to  have  argued  for  the  defendant,  was 
*absent.  The  reasons,  with  the  facts  applicable  to  each,  are 
noticed  in  the  opinion  of  the  court. 

SOUTHAED,  J. 

The  facts  upon  which  Juliann  Sparks  founded  her  right  to 
obtain  possession  of  the  premises  in  question  were,  that  a  cer- 
tain George  Goff  was  seized  in  fee  and  possessed  of  the  said 
premises;  that  on  the  10th  of  October,  1815,  he  did,  by  deed, 

( a)  Pullen  v.  Boney,  1  South.  125 ;  Banks  v.  Murray,  post  849  ;  State  v.  Co- 
venhoven,  1  Hal.  396 ;  Bennet  v.  Montgomery,  3  Hal.  48  ;  Mercereau  v.  Bergen, 
8  Or.  ^47  ;  Corlies  v.  Corlies,  2  Harr.  167 ;  Drake  v.  Newton,  3  Zab.  Ill;    Wall 
v.  Hunt,  4  Hal.  37. 

(b)  See  Cox  v.  Baird,  6  Hal.  105  ;    Oliver  v.  Phelps,  1  Zab.  597 ;  King  v. 
King,  1  Stock.  44  ;  but  see  Stotesbury  v.  Vail,  2  Beas.  390. 

(c)  Mairs  v.  Sparks,  1  South.  369. 

(d)  Ludlow  v.  Ludlow,  1  South.  389  ;  Kingsland  v.  Gould,  1  Hal.  161 ;  Hinch- 
man  v.  Cook,  Spen.  271 ;    Me  WiUiams  v.  King,  3  Vr.  21 ;  Green  v.  Jersey  City, 
13  Vr.  122. 

(e)  Van  Auken  v.  Decker,  Penn.  *111 ;  Crane  v.  Dod,  Penn.  *S40 ;  Davison 
V.  Schooley,  5  Hal.  145 ;   Youngs  v.  Sunderland,  3  Gr.  32. 

*514 


'2  SOUTH.]          FEBRUARY  TERM,  1819.  607 

Mairs  r.  Sparks. 

lease  the  same  to  Henry  Sparks,  the  then  husband  of  said 
plaintiff,  for  the  term  of  five  years,  to  commence  on  the  loth 
day  of  March  then  next ;  that  the  said  Henry  Sparks  devised  by 
his  last  will  and  testament  all  his  right  in  said  lease  to  the  plain- 
tiff, whereby  she  became,  on  his  death,  entitled  to  the  possession  of 
the  premises  ;  but  that  the  defendant  held  and  kept  possession 
thereof  with  force  &c.,  from  the  said  15th  of  March  to  the  day 
of  bringing  the  suit  &c. 

On  the  trial  the  plaintiff  confessed  and  admitted  that  neither 
Henry  Sparks  nor  herself  ever  was  in  possession  of  the  premises  ; 
that  Stephen  Hutchinson  possessed  them  at  the  time  when  the 
lease  was  executed  and  until  the  21st  of  March,  1816,  at  which 
time  the  defendant  came  into  the  possession  peaceably,  by  virtue 
of  a  deed  from  Goff  conveying  the  land  to  him.  This  deed 
was  read  to  the  jury  by  the  consent  of  the  plaintiff.  It  bears 
date  on  the  1st  of  February,  1816.  After  this  admission  and 
evidence  the  defendant  offered  to  prove  that  after  the  death  of  her 
husband,  Henry  Sparks  (which  was  prior  to  the  date  of  Goff 's 
deed  to  him),  the  complainant  had  renounced  the  lease  and  ex- 
pressly refused  to  have  anything  to  do  with  the  premises,  and 
that  in  consequence  of  her  refusal  the  defendant  bought  and 
received  the  deed.  This  evidence  was  overruled  by  the  court, 
as  he  states,  upon  the  ground  that  it  contradicted  the  written 
lease.  Several  witnesses  were  sworn  and  other  evidence  offered 
and  received.  The  jury  found  a  verdict  that  the  defendant  was 
guilty  of  the  forcible  detainer  &c.  The  justice  gave  judgment 
that  the  said  Juliann  Sparks  do  have  restitution  of  the  posses- 
sion of  the  said  messuage  <fec.,  and  also  that  she  recover  $54.49, 
being  the  treble  costs  &c.  As  soon  as  the  verdict  was  rendered 
and  the  judgment  pronounced,  the  attorney  of  the  defendant 
took  from  his  pocket  a  writ  of  certiorari  to  remove  the  proceed- 
ings and  judgment  into  the  supreme  court.  This  writ  was  regu- 
larly endorsed  with  the  aUocatnr  of  a  judge  residing  many  miles 
*distant.  The  justice,  therefore,  supposing  that  it  had  been  ille- 
gally granted,  as  it  must  have  been  Issued  before  judgment  was 
given,  paid  no  attention  to  it,  but,  upon  the  request  of  the  plain- 

*515 


608  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Mairs  v.  Sparks. 

• 

tiff,  granted  a  writ  of  restitution,  which  was  delivered  to  the 
sheriff  and  by  him  executed  and  plaintiff  put  in  possession. 

Six  reasons  for  a  reversal  have  been  argued  arising  from  the 
proceedings  so  far  as  they  appear  upon  the  record  and  the  facts 
thus  far  detailed ;  and  one  additional  reason  has  been  warmly 
pressed  arising  from  the  conduct  of  the  sheriff,  the  court  and  the 
agent  of  the  plaintiff  in  selecting  the  jury.  I  will  endeavor  to 
notice  each  of  them  in  their  order. 

1.  It  is  said  that  the  complainant  below,  Juliann  Sparks, 
never  was  in  possession  of  the  premises,  and  cannot,  therefore, 
maintain   this   action.     I   apprehend   that   this  reason   is  well 
founded.     That  the  plaintiff  in  forcible  entry,  or  forcible  de- 
tainer, must  have  either  a  possession  in  fact  or  law  to  maintain 
his  suit,  is  too  manifest  to  require  argument  or  authority  to  prove. 
A  mere  claim  or  right  of  possession  will  not  be  sufficient ;  it 
must  be  a  right  in  possession  which  is  disturbed  and  for  which 
the  action  is  brought.     In  the  present  case  the  right  of  Juliann 
Sparks  arose  solely  from  the  will  of  her  husband  devising  his 
right  in  the  lease  to  her.     Neither  of  them  had  any  possession 
at  any  time.     The  owner  of  the  premises  had  agreed  that  Henry 
Sparks  should  possess  them.     Will  a  refusal  to  comply  with  his 
agreement  authorize   this   action?    Clearly  not.     For  such  an 
injury  a  remedy  must  be  sought  in  another  kind  of  action. 

2.  There  was  no  evidence  of  force  of  any  description  used  by 
the  defendant.     However  necessary  a  constituent  in  this  action 
force  may  be,  the  propriety  of  this  reason  may  well  be  ques- 
tioned.    We  are  not  to  presume,  as  was  argued,  that  the  whole 
evidence  was  spread  by  the  justice  upon  his  record.     He  is  not 
bound  to  do  so ;   and  although  part  of  it  is  there,  yet  he  does 
not  assure  us  that  he  has  given  all ;   on  the  contrary,  it  is  mani- 
fest that  he  has  not.     Several  witnesses  were  sworn  whose  testi- 
mony is  not  detailed.     They  may  have  proved  what  the  counsel 
require. 

3.  The  defendant  below  offered  to  prove  that  the  plaintiff  had 
given  up  the  lease,  and  declared  that  she  would  have  nothing  to 
do  with  it ;  and  that  in  consequence  of  this  conduct  on  her  part 
he  had  been  induced  to  buy  the  premises,  and  had  bought  them. 


2  SOUTH.]  FEBRUARY  TERM,  1819.  609 

Main  r.  Sparks. 

Tin •  justice  refused  to  permit  him  to  prove  this,  and  in  doing  so  *he 
erred.  A  party  may  surrender  a  lease  by  parol,  and  after  he  has 
so  surrendered  it  he  can  have  no  right  of  entry  on  the  demised 
premises.  Besides,  if  the  fact  be  as  the  defendant  offered  to  show 
it,  then,  I  think,  it  is  perfectly  clear  that  that  fact,  taken  in  con- 
nection with  the  date  of  the  deed  (February  1st,  1816),  of  the 
lease  (October  10th,  1815),  of  the  commencement  of  the  term 
(March  15th,  1816),  and  of  the  entry  of  the  defendant  (March 
•Jlst,  1816),  all  show  a  consent  on  the  part  of  the  plaintiff  that 
defendant  should  enter  and  possess  the  premises ;  and  if  so,  the 
detainer  could  not  be  forcible  or  unlawful.  The  evidence  seems 
to  be  essential  to  the  true  understanding  of  the  rights  of  the 
parties.  The  reason  which  the  justice  assigns  for  overruling  it 
i-  that  it  contradicted  the  written  lease.  But  I  apprehend  that 
he  has  misapplied  a  correct  legal  principle.  Though  it  be  true 
that  you  may  not  contradict  or  alter  a  written  agreement  by 
parol,  yet  it  is  equally  true  that  you  may  show  that  a  written 
lease  has  been  given  up,  destroyed  and  vacated  by  a  subsequent 
agreement.  Here  the  evidence  offered  does  not  alter  or  contra- 
dict the  lease.  It  expressly  admits  its  existence,  its  force,  its 
meaning;  but  it  avoids  its  operation  by  subsequent  matters. 
And  it  ought  to  have  been  admitted,  especially  in  this  case,  where 
the  plaintiff  complained  that  the  defendant  had  forcibly  and  ille- 
gally detained  the  premises  from  her  rightful  possession. 

4.  The  writ  of  restitution  was  issued  after  the  writ  ofcertiordri 
was  presented  to  the  justice.  This  is  true  in  fact.  The  certio- 
rari  was  handed  to  the  justice  as  soon  as  the  verdict  was  ren- 
dered and  the  judgment  pronounced,  and  before  he  had  com- 
pleted his  record,  and  the  legal  effect  is  not  to  be  doubted.  The 
writ  of  certiorari  issuing  out  of  this  court  and  directed  to  the 
court  for  the  trial  of  small  causes  is,  in  its  nature  and  effect,  a 
superseded*,  and  ought  to  stay  all  further  proceedings  in  the 
cause.  After  it  is  received  the  justice  has  no  right  to  take  any 
proceeding,  or  to  issue  any  writ.  If  he  do  he  subjects  himself  to 
an  attachment  for  contempt,  and  the  records  of  this  court  show 
at  least  one  instance  in  which  the  attachment  has  been  granted, 
and  the  justice  punished  for  issuing  an  execution  upon  a  judg- 
*516  39 


610  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Mairs  v.  Sparks. 

inent  which  had  been  removed  hither  by  that  writ.  Nor  is  it 
the  duty  of  the  justice  to  canvass  and  decide  how  far  it  was 
legally  issued.  He  has  no  power  to  determine  that  matter ;  it 
rests  with  another  tribunal.  It  is  enough  for  him  that  it  appears 
to  be  in  proper  form,  *and  with  the  attocatur  endorsed  upon  it 
by  a  justice  of  the  supreme  court.  It  is  to  be  regretted  that  jus- 
tices, no  doubt  with  the  most  correct  intentions,  often  do  proceed, 
and  require  a  writ  of  supersedeas  before  they  stay  their  further 
progress  in  the  cause.  Such  a  course  is  contrary  to  law  and  pro- 
ductive of  much  inconvenience  to  parties.  In  the  present  case 
the  justice  ought  to  have  entered  his  judgment,  refused  the  writ 
of  restitution  which  was  applied  for,  and  made  return  to  this 
court,  out  of  which  the  certiorari  issued.  But  although  this 
would  have  been  the  legal  and  regular  proceeding,  yet  I  do  not 
perceive  any  other  ground  of  censure  than  always  exists  where 
a  court  errs  in  judgment  upon  a  point  of  law.  The  distance  at 
which  the  judge  lived  who  granted  the  attocatur,  the  time  and 
manner  of  presenting  the  writ,  were  not  a  little  calculated  to  lead 
him  into  the  error  he  committed.  He  no  doubt  perceived  that 
it  must  necessarily  have  been  issued  before  the  judgment  was 
rendered,  which  it  was  designed  to  remove,  and  it  is  not  strange 
that  he  should  suppose  that  it  was  therefore  illegal.  It  has, 
however,  often  been  decided  that  a  writ  of  certiorari  so  allowed, 
will  be  sustained.  N.  J.  Rep.  369.  But  were  the  conduct  of 
the  justice,  on  this  point,  ever  so  erroneous,  it  would  furnish  no 
ground  for  reversing  this  judgment.  It  cannot  vitiate  the  pre- 
vious proceedings,  and  all  the  benefit  which  the  plaintiff  in  cer- 
tiorari could  derive  from  it  would  be  to  have  the  writ  of  restitu- 
tion set  aside,  and  be  restored  to  the  situation  in  which  he  was 
when  judgment  was  pronounced. 

5.  The  costs  were  taxed,  then  multiplied  by  three  and  the  ex- 
ecution issued  for  the  amount ;  whereas  it  is  contended  that  it 
should  have  been  for  the  whole,  one-half,  and  one-quarter  of  the 
bill  added  together.  This  reason,  if  true  in  law,  will  only  vitiate 
the  judgment  so  far  as  relates  to  the  costs,  but  will  not  destroy 
it  altogether.  But  I  apprehend  it  is  not  true  in  law.  I  am 
aware  that  such  a  mode  of  calculating  the  costs  has  been  adopted 

*517 


2  SOUTH.]  FEBEUARY  TERM,  1819.  611 

Maira  v.  Sparks. 

in  some  cases  under  the  British  statutes ;  but  I  do  not  think  that 
either  the  plain  words  of  our  law  or  the  mode  of  calculation  which 
has  always  been  in  use  here  in  cases  of  double  and  treble  costs, 
"will  justify  us  in  following  the  English  rule  on  this  subject.  The 
justice  calculated  them  correctly. 

6.  There  is  only  a  judgment  of  restitution  but  no  judgment 
•of  detainer,  and,  therefore,  it  is  void.     The  verdict  found  the 
unlawful  and  forcible  detainer  and  that  the  defendant  was  guilty. 
*The  judgment  which  followed  appears  to  me  sufficient  for  all 
just  or  legal  purposes  in  that  court. 

7.  The  last  reason  which  engaged  the  attention  of  the  counsel 
•was  that  the  jury  was  corruptly  selected  by  the  sheriff,  with  the 
knowledge  of  the  court,  at  the  dictation  of  the  agent  of  the 
plaintiff  below.      Much  excitement  seemed  to  be  felt  by  the 
counsel  in   the   investigation   of  this   reason.     They  seemed  to 
consider  the  whole  case  as  exhibiting  a  high-handed  violation  of 
law  and  justice  by  the  public  officers  who  were  concerned  in  it. 
The  court  have,  therefore,  looked  with  care  into  the  bundle  of 
affidavits  which  were   taken   on   the   part  of  the  plaintiff   in 
certiorari  and  supposed  to  sustain   this  reason.     We  have  not 
seen  those  which  were  taken  on  the  part  of  the  defendant ;  nor 
was  it  necessary  that  we  should  see  them.     The  fact  is  not  estab- 
lished by  the  proof  offered  by  the  plaintiff.     There  appears  to 
be  no  just  or  reasonable  ground  for  accusation  against  the  party 
or  officers  on  this  point.     I  do  not  think  it  important  to  give  a 
summary  of  the  affidavits.     It  is  sufficient  to  say  that  so  far  as 
the  case  is  before  us,  the  conduct  of  the  party,  the  sheriff,  and 
the  justice  seems  to  have  been  open,  public  and  legal ;  not  derog- 
atory to  their  characters  as  correct  and  just  men. 

For  the  first  and  third  reasons,  therefore,  I  think  there  must 
be  a  reversal  of  the  judgment.  Upon  the  rest  there  is  no  legal 
cause  of  complaint ;  arid  of  this  opinion  are  the  whole  court. 

Judgment  reversed. 
*518 


612  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Ogden  t>.  Gibbons. 

AARON  OGDEN  v.  THOMAS  GIBBONS,  (a) 
In  trespass  quare  dausum  fregit. 

This  was  a  rule  to  show  cause  why  the  verdict  should  not  be 
set  aside  and  a  new  trial  granted.  The  verdict  was  received  by 
the  chief-justice  at  the  Essex  circuit  in  September,  1818.  The 
declaration  complained  that  the  defendant,  on  the  20th  of  De- 
cember, 1816,  with  force  &c.,  entered  the  home-lot  of  plaintiff, 
situate  &c.,  and  trod  down  &c.,  the  grass  &c.,  to  the  value  of 
$1,  and  did  then  and  there  enter  into  the  dwelling-house  of  the 
said  Aaron,  on  the  said  close  there  then  being,  and  did  then  and 
*there  unlawfully  fix  and  post  up  on  the  door  of  the  said  house 
a  wicked,  malicious  and  insulting  printed  hand-bill,  the  tenor  of 
which  is  as  follows,  to  wit :  "  To  Colonel  Aaron  Ogden :  Sir — 
As  you  refused  to  receive  a  letter  which  I  sent  you  by  General 
Dayton  yesterday,  I  will  give  it  publicity  through  another 
channel.  For,  like  Nicanor  upon  Judas,  you  made  war  upon  me 
on  the  Sabbath-day.  But  first,  of  the  letter  you  had  received  by 
the  hands  of  General  Dayton,  which  is  as  follows :  '  To  Colonel 
Ogden,  Eliz.,  30th  May,  1816:  Sir — I  was  this  day  arrested 
in  a  suit  at  law  in  your  name,  in  the  city  of  New  York,  after 
I  was  on  board  of  the  steamboat  returning  to  Elizabethtown. 
As  we  reside  within  half  a  mile  of  each  other,  and  you  never 
intimated  to  me  or  any  of  my  friends  any  claims  or  cause  of 
action  against  me,  I  pronounce  your  conduct  rascally.  I  don't 
regard  your  suit  in  terrorem,  but  I  must  teach  you  to  proceed 
with  decency.'  Copy  of  the  letter  you  declined  receiving  by  the 
hands  of  General  Dayton :  '  To  Colonel  Aaron  Ogden,  Elizabeth- 
town,  25th  July,  1816  :  Sir — I  understand  that  you  have  inter- 
fered in  a  dispute  between  Mrs.  Gibbons  and  myself,  which  has 
been  brought  on  by  John  Trumbull  and  wife.  My  friend,  General 
Dayton,  will  arrange  with  you  the  time  and  place  of  our  meet- 

(a)  Reversed  in  error,  post  853.    Cited  in  Mann  v.  Glover,  2  Or.  200. 

*519 


2  SOUTH.]  FEBRUARY  TERM,  1819.  613 

Ogden  v.  Gibbons. 

ing.  Elizabethtown,  26th  July,  1816.  Thomas  Gibbons.'"  To 
which  printed  hand-bill  was  added  a  written  postscript  in  the 
handwriting  of  the  said  Thomas  Gibbons,  the  tenor  of  which  is 
AS  follows :  "  P.  8. — As  you  have  been  furnished  with  such  an 
hand-bill  as  the  above,  on  the  first  ulto.,  I  hope  you  are  prepared 
to  explain  yourself  for  your  wanton  interference  in  a  case  so 
-delicate.  If  you  stand  mute  I  shall  adjudge  you  as  pleading 
guilty  and  treat  you  as  a  convict."  And  other  wrongs  &c.,  to 
Jlis  damage  &c.,  $5,000. 

The  plea  was  not  guilty.  When  the  cause  was  called  at  the 
•circuit  the  defendant  moved  the  postponement  of  the  trial  for 
two  reasons.  1.  Because  the  attorney  of  the  plaintiff,  when  re- 
quested to  furnish  a  copy  of  the  declaration,  gave  to  the  defend- 
ant's attorney  one  which  was  variant  from  that  in  the  circuit 
record,  in  this,  that  in  the  copy,  the  name  signed  to  the  writing 
set  forth  in  the  declaration  was  Thomas  Gibbons,  and  in  the 
record,  Th.  Gibbons,  which  latter  was  according  to  the  fact,  the 
•copy  being  incorrect.  2.  Because  Samuel  Burt,  a  material  \\  it- 
ness,  was  absent.  Defendant  swore  that  Burt  was  a  material 
witness,  and  by  his  own  and  J.  Periam's  affidavits  he  proved 
that  on  the  2d  of  September  a  subpoena  was  shown  to  Burt's 
wife  and  a  copy  left  at  his  house  in  Elizabethtowu ;  that  his  wife 
said,  at  the  time,  that  he  had  gone  to  the  westward  and  was  not 
expected  back  before  the  trial ;  she  was  requested,  when  he  re- 
turned, to  give  him  the  copy  of  the  subpoana  and  reques  this  at- 
tendance, but  no  fee  was  left  for  him.  It  also  appeared  that  the 
trial  had  twice  before  been  postponed  by  the  defendant,  once  on 
account  of  the  sudden  illness  of  General  Dayton,  one  of  his  wit- 
nesses, who  was  taken  sick  while  attending  the  court ;  the  second 
time  for  the  absence  of  J.  M.  Trumbull,  one  of  his  witnesses, 
who  was  subpoenaed  but  not  present  when  the  cause  was  called. 
On  this  occasion  the  plaintiff  offered,  at  his  own  expense,  to  pro- 
cure Trumbull's  attendance  in  an  hour  or  two,  but  the  defend- 
ant declined  accepting  the  offer,  and  the  trial  was  postponed. 

Upon  these  facts  being  shown  the  chief-justice  ordered  the 
cause  to  proceed. 

The  plaintiff  then  proved  that  some  day  in  September,  1816, 

*520 


614  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Ogden  v.  Gibbons. 

about  noon,  the  defendant  went  with  a  horse-whip,  cane  and 
paper  in  his  hands,  to  the  plaintiff's  office,  which  is  a  building; 
standing  back  from  the  street  and  adjoining  the  house,  having 
two  rooms  below,  with  bedrooms  above ;  that  he  fastened  with 
wafers  to  the  door,  which  was  half-way  open,  a  hand-bill,  and 
then  went  away.  It  remained  on  the  door  a  short  time  and  was- 
read  by  one  or  two,  when  the  plaintiff's  daughter  took  it  down. 
The  plaintiff  was  from  home  at  the  time  but  returned  in  a  few 
minutes  after ;  his  wife  and  daughter  were  there  and  the  family 
seemed  alarmed  and  disturbed.  The  pathway  to  the  office  is- 
graveled  and  usually  left  open.  The  passage  through  the  office- 
communicates  with  the  house  but  is  not  often  used  by  the  family. 
G.  C.  Barber,  a  son-in-law  of  the  plaintiff,  is  a  practicing  law- 
yer, clerk  of  the  borough  court  of  Elizabeth,  notary  public  and 
master  and  examiner  in  chancery,  and  uses  the  office  in  common 
with  the  plaintiff  for  all  the  purposes  of  his  business,  but  does- 
it  by  the  permission  of  the  plaintiff,  and  claims  no  right  of 
property  or  possession  in  it,  although  in  speaking  of  it  he  usually 
calls  it  his  office.  Defendant  was  formerly  on  good  terms  with 
the  plaintiff  and  visited  at  his  house.  The  hand-bill  set  out  in 
the  declaration  was  then  proved  and  read  to  the  jury,  after  which 
the  plaintiff  rested. 

The  defendant  then  gave  in  evidence  a  letter  from  the  plain- 
tiff to  defendant  in  the  following  words :  "  Elizabethtown,. 
June  1st,  1816.  Thomas  Gibbons,  Esq. :  Sir — I  subjoin  a  copy 
of  a  letter  which  I  have  written  and  sent  this  morning.  I  have- 
further  to  add  that  I  am  extremely  sorry  for  the  mistake  and 
am  ready,  if  required,  to  reimburse  such  expenses  as  it  may  have 
occasioned  you.  I  am  &c."  Copy.  "  David  B.  Ogden,  Esq.  r 
Dear  Sir — I  parted  with  the  endorsed  note  of  Mr.  Gibbons,, 
after  the  instructions  I  had  left  with  you,  to  put  it  in  suit,  but 
somehow,  in  the  hurry  of  business,  having  immediately  after 
made  two  journeys,  the  one  to  Princeton,  the  other  to  Sussex  court, 
I  inadvertently  omitted  to  give  you  timely  notice,  as  I  under- 
stood on  my  return  yesterday  from  Sussex  the  suit  has  been 
commenced.  You  will,  therefore,  please  to  discontinue  it  im- 
mediately ;  charge  me  with  the  costs  and  take  such  measures  as. 

*521 


2  SOUTH.]  FEBRUARY  TERM,  1819.  615 

Ogden  v.  Gibbons. 

may  be  necessary  to  discharge  the  bail,  and  give  the  due  m-ti  . . 
both  to  him  and  Mr.  Gibbons.  I  am  &c."  The  defendant  al.-o 
gave  in  evidence  a  note  in  these  words :  "  On  or  before  the-  1  -t 
day  of  April  next  I  promise  to  pay  to  Peter  Coryell,  or  order, 
two  thousand  one  hundred  and  eighty-three  dollars  and  thirty- 
four  cents,  without  defalcation  or  discount  for  value  received. 
New  York,  20th  November,  1815,  and  signed  Th.  Gibbons,  and 
endorsed  '  Peter  Coryell/  Aaron  Ogden,"  which  note  was  the 
one  on  which  the  suit  was  brought  in  New  York.  General 
Dayton  testified  that  on  the  25th  of  July,  1816,  he  received  a 
letter  addressed  to  the  plaintiff  enclosed  in  a  note  to  himself, 
with  a  request  to  deliver  it  to  the  plaintiff.  On  the  morning  of 
the  26th  he  went  to  the  door  of  the  plaintiff's  office  and  in- 
formed him  that  he  had  called  on  some  matters  of  business. 
Plaintiff  replied  that  he  was  then  too  unwell  to  attend  to  business, 
and  as  soon  as  he  was  well  enough  he  must  go  to  New  York.  He 
then  informed  plaintiff  that  he  would  waive  two  matters  of  busi- 
ness and  proceed  to  the  most  important ;  informed  him  he  had  a 
letter,  and  presented  it.  When  plaintiff  saw  the  handwriting  he 
declined  receiving  it,  saying,  "  I  can  receive  no  letter  from  that 
quarter,  for  I  have  already  received  one  couched  in  such  terms 
as  forbid  all  further  communication."  He  then  went  into  an  ex- 
planation of  what  he  supposed  to  be  its  object,  viz.,  that  Mr. 
Gibbons  had  understood  that  the  plaintiff  had  been  interfering 
in  a  dispute  between  him  and  Mrs.  Gibbons,  and  he  wished  to 
know  if  plaintiff  had  done  so,  and  to  explain  the  motives  of 
his  conduct.  Plain*tiff  replied  that  "  he  had  no  explanation  to 
make."  Upon  being  urged,  he  added,  "  Mr.  Gibbons  would  not 
like  to  hear  the  explanation."  "  Nay,"  said  General  Dayton, 
"  that  is  the  very  thing  he  wishes."  Plaintiff  then  replied,  "  tell 
Mr.  Gibbons  I  have  no  explanation  to  make,  and  if  he  thinks  1 
have  done  him  wrong  he  must  pursue  such  measures  to  obtain 
redress  as  he  thinks  proper."  The  witness  then  said  he  would 
acquaint  Mr.  Gibbons  with  the  answer,  and  left  him.  Some 
time  after  this,  defendant  being  at  General  Dayton's  house  at 
dinner,  said,  "  that  as  Colonel  Ogden  would  not  receive  the  letter 
he  had  sent  him  by  witness,  he  would  carry  it  himself,  and  if  ho 

*522 


616  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Ogden  v.  Gibbons. 


was  not  at  home  he  would  put  it  up  where  he  could  see  it." 
That  he  then  went  to  plaintiff's  office  with  a  whip  and  cane  in 
his  hands,  being  the  same  he  almost  always  carried  with  him 
when  out  from  home ;  that  he  came  back  to  General  Dayton's 
house  and  was  standing  with  him  in  the  door,  in  full  view,  when 
plaintiff  returned  home,  a  few  minutes  after.  Being  cross-ex- 
amined, he  said  that  on  the  30th  of  May,  1816,  he  received  from 
defendant  a  letter  in  his  handwriting  to  be  delivered  to  the  plain- 
tiff, the  contents  of  which  he  knew,  for  defendant  felt  himself 
injured;  that  he  called  at  Rivers's  tavern,  where  plaintiff  was 
engaged  in  business,  and  requested  the  landlord  to  call  him,  who 
did  so,  and  he  delivered  it,  but  plaintiff  put  it  in  his  pocket 
without  opening  or  reading  it.  Witness,  at  the  time  he  delivered 
these  letters,  was  not  on  terms  of  social  intercourse  with  the  plain- 
tiff, but  only  spoke  to  him  on  matters  of  business.  Plaintiff, 
when  he  refused  to  receive  the  letter  at  his  office  door,  did  not 
say  that  he  had  received  a  letter  through  witness  couched  in  of- 
fensive terms,  nor  deny  generally  that  he  had  interfered  between 
Mr.  and  Mrs.  Gibbons. 

Plaintiff  then  read  to  the  jury  his  note  of  the  23d  of  June, 
1816,  which  defendant  produced  upon  notice,  in  these  words: 
"Colonel  Ogden  informs  Mr.  Gibbons  that  Colonel  Ogden's 
note  to  Mr.  Gibbons  on  the  1st  instant  was  written  and  sent  be- 
fore the  receipt  of  his  note  to  Colonel  Ogden  of  the  30th  May 
preceding." 

The  defendant  called  Peter  Coryell,  who  testified  that  he  re- 
ceived the  promissory  note  before  mentioned  from  defendant  in 
part  payment  for  some  land ;  that  defendant  twice  offered  to  pay 
it  before  it  was  due  if  he  would  deduct  the  interest,  which  he 
refused,  as  he  did  not  want  the  money.  Defendant  then  said  if 
he  would  not  make  the  discount  and  take  the  money  he  would 
carry  *it  from  court  to  court  throughout  the  United  States ;  that, 
intimidated  by  his  threat,  he  consulted  Colonel  E.  Dayton,  who 
advised  him,  as  the  note  was  payable  in  New  York,  it  might  be 
collected  there;  he  therefore  endorsed  the  note  and  gave  it  to 
Colonel  Dayton,  who,  as  his  agent,  passed  it  to  plaintiff  and  took 
a  writing  for  the  money.  Plaintiff  placed  it  in  the  Union  Bank. 

*523 


2  SOUTH.]  FEBRUARY  TERM,  1819.  617 

Ogden  ».  Gibbons. 

The  plaintiff  called  John  Low,  who  testified  that  the  note  was 
left  in  the  Union  Bank  for  collection,  and  that  defendant  saw  it 
there  before  its  maturity ;  that  it  was  protested  for  non-payment, 
and  notice  given  ;  that  banks  discount  notes  where  drawer  lives 
in  a  different  state,  if  they  have  good  endorsers  in  the  city,  and 
would  discount  this  from  respect  to  the  parties,  they  being  often 
in  the  city.  Ephraim  Clark  testified  that  he  lived  in  defend- 
ant's house  and  keeps  tavern  in  it,  and  a  few  days  after  putting 
up  the  hand-bill  he  went  to  the  defendant's  and  inquired  of  him 
about  it,  telling  him  he  understood  he  had  challenged  Colonel 
Ogden.  Defendant  said  he  did  not  know,  for  he  had  not  said 
challenge  nor  a  word  about  challenge,  but  Colonel  Ogden  might 
make  what  he  pleased  of  it,  but  he  would  read  the  hand-bill  to 
him  ;  which  he  did.  Defendant  added  that  he  went  From  General 
Dayton's  to  Colonel  Ogden's  with  a  horse-whip  in  his  hand,  and  if 
he  had  found  him  at  home  he  meant  to  have  whipped  him  within 
-an  inch  of  his  life  in  his  own  house,  for  he  knew  he  was  a 
coward ;  that  Colonel  Ogden  saw  him  coming  and  sneaked  through 
the  back  way,  over  the  fence  and  came  round  the  corner  by  Colonel 
Mayo's ;  the  reason  he  gave  for  saying  this  was,  that  when  ho 
inquired  of  Colonel  Ogden's  servant  if  he  was  at  home  he  said  he 
was,  and  he  (defendant)  first  saw  him  near  the  corner  opposite 
<Jolonel  Mayo's,  getting  over  the  fence. 

General  Dayton  being  again  called  by  defendant,  testified  that  he 
-saw  defendant,  before  the  note  was  due,  tender  to  Coryell  the 
amount,  after  deducting  the  interest ;  that  he  was  present  at  the 
giving  of  the  note,  and  it  was  dated  in  New  York,  to  secure 
New  York  money  in  payment,  but  not  to  oblige  payment  to  be 
made  there ;  that  Coryell  expressly  said  his  object  was  to  get 
New  York  money,  and  it  was  understood  between  them  that  it 
should  be  paid  where  they  lived,  in  Elizabethtown,  but  he  did 
not  recollect  anything  said  about  a  discount  of  the  interest  if 
paid  before  due.  Peter  Coryell  being  called  said  there  was  no 
stipulation  on  his  part  to  receive  the  money  when  defendant 
*chose,  and  discount  the  interest,  nor  to  receive  payment  at 
Elizabethtown. 

After  the  evidence  was  closed  the  jury  found  a  verdict  for 

*524 


618  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Ogden  v.  Gibbons. 

$5,000  damages.  Upon  the  coming  in  of  the  postea  a  rule  was 
granted,  on  motion  of  the  defendant,  to  show  cause  why  a  new 
trial  should  not  be  allowed.  In  support  of  this  rule  the  follow- 
ing reasons  were  filed : 

1.  Because  the  chief-justice,  before  whom  the  said  cause  was 
tried,  refused  to  put  off  the  trial  of  the  cause  upon  the  applica- 
tion of  the  defendant,  although  it  appeared  that  the  defendant's 
attorney  had  been  furnished  by  the  attorney  for  the  plaintiff 
with  an  alleged  copy  of  the  declaration  materially  variant  from 
the  declaration  contained  in  the  transcripts  in  said  cause ;  which 
copy  of  the  declaration  the  defendant's  attorney  and  counsel  had 
supposed  was  a  true  copy  and  prepared  the  cause  for  trial  accord- 
ingly, and  knew  not  to  the  contrary  until  the  cause  was  moved 
and  the  transcript  produced.     And  because  the  chief-justice  re- 
fused to  put  off  the  trial  of  said   cause,  although   a  sufficient 
affidavit  for  that  purpose,  of  the  absence  of  a  material  witness 
on  the  part  of  the  defendant,  was  made  and  read. 

2.  Because  the  jury  assessed  the  plaintiff's  damages  at  $5,000, 
the  whole  sum  demanded  in  the  plaintiff's  declaration,  which 
damages  are  excessive. 

3.  Because  the  verdict  of  the  jury  was  against  the  evidence  in 
the  cause. 

4.  Because  the  verdict  of  the  jury  rendered  in  the  cause  was 
against  the  weight  of  evidence. 

5.  Because  the  supposed  injury  upon  which  the  jury  found 
the  said  excessive  damages,  except  the  sum  of  $1  for  the  trespass, 
was  not  real  but  imaginary  ;  was  new  and  without  precedent. 

6.  Because  the  supposed  injury  for  which  the  damages  were 
given,  except  the  sum  of  $1  in  the  plaintiff's  declaration  men- 
tioned, did  not  entitle  the  plaintiff  to  recover  any  damages,  or  at 
most  but  nominal  damages. 

7.  Because  the  jury  ought  to   have  assessed  the   plaintiff's 
damages  at  part  only  of  the  sum  demanded  in  the  plaintiff's 
declaration ;  the  possession  of  the  premises  upon  which  the  sup- 
posed trespass  was  said  to  be  committed,  or  some  part  thereof, 
being  in  the  possession  of  Aaron  Ogden  and  George  C.  Barber. 


-SOUTH.]          FEBRUARY  TERM,  1819,  <;i:< 

Ogden  r.  Gibbons. 

*  Vanaradale  and  Hcdsey,  for  the  defendant,  on  the  lir-t  ivn- 
son  assigned,  argued  that  where  a  judge  at  the  circuit  errs  in  a 
matter  of  discretion,  it  will  be  reconsidered  at  bar,  and  a  new 
trial  granted.  7  Johns.  306.  That  the  chief-justice  did  err  in 
compelling  a  trial  at  the  circuit — 1.  On  account  of  the  varian;-!- 
between  the  circuit  record  and  the  copy  of  the  declaration  fur- 
nished ;  that  the  circumstance  of  its  being  furnished  by  the  plain- 
tiff's attorney,  as  matter  of  courtesy,  if  such  it  must  be  consid- 
ered, did  not  lessen  the  injury  or  surprise ;  that  it  was  such  a 
variance  as  was  calculated  to  mislead  ;  for  relying  on  it  the  de- 
fendant might  alter  his  preparations  for  trial;  that  in  this  i-.:-<- 
it  was  absolutely  necessary  to  set  out  the  tenor  of  the  hand-bill, 
if  the  pretensions  of  the  plaintiff  were  right,  and  damages  were 
to  be  ascertained,  not  only  from  the  injury  of  setting  it  up,  but 
from  the  contents  of  the  bill,  wrhich  were  alleged  to  be  a  libel 
and  challenge ;  that  tenor  means  a  true  copy  ;  that  this  was  not 
so,  for  Th :  does  not  necessarily  nor  usually  mean  Thomas,  and 
time  ought  to  have  been  given  to  see  whether  the  error  was  in 
the  copy  or  the  circuit  record,  for  if  the  variance  existed  between 
the  declaration  and  the  hand-bill  it  would  have  been  fatal  on  tin- 
trial  to  the  admission  of  the  evidence.  2  Wils.  260 ;  2  Satk. 
660  ;  2  Stra.  770.  In  the  second  place,  that  the  trial  ought  to 
have  been  postponed  on  account  of  the  absence  of  the  witness. 
In  deciding  this  point  this  court  must  place  itself  in  the  situation 
of  the  circuit  judge,  and  determine  from  the  facts  then  existing ; 
that  the  previous  postponements  were  no  cause  per  se  for  forcing 
on  the  trial ;  that  they  were  made  on  sufficient  grounds,  and  left 
no  suspicion  or  prejudice  on  the  question  ;  that  a  party  was  en- 
titled to  a  postponement  upon  affidavit  of  materiality  of  a  wit- 
ness, of  his  absence,  of  due  diligence  to  get  him,  and  of  expecta- 
tion of  his  being  present  at  a  future  time  ;  that  the  affidavit  in 
this  case  was  full  in  all  respects ;  that  there  was  no  default  in 
giving  the  fees  to  the  witness — the  person  serving  the  subpoena 
had  the  money  but  could  not  deliver  it,  as  witness  was  not  found  ; 
that  there  could  be  no  suspicion  that  witness  was  improperly  out  of 
the  way,  nor  any  suspicion  from  other  causes ;  that  the  court  did 
not  require  the  materiality  of  the  testimony  to  be  disclosed, 

*525 


620  NEW  JERSEY  SUPilEME  COURT.      [5  LAW 

Ogden  v.  Gibbons. 


defendant  was  not  bound  to  disclose  it  unless  required,  nor  was 
lie  bound  to  do  here  what  was  not  necessary  there ;  that  the  fair 
*administration  of  justice  requires  that  a  party  be  not  surprised, 
but  fully  heard,  which  was  not  the  case  in  this  instance. 

Upon  the  other  reasons  they  argued  that  the  damages  were 
excessive  and  outrageous,  an  injury  to  the  extent  of  $1  not  being- 
proved  ;  if  any  were  done  it  was  of  a  character  totally  distinct 
from  the  nature  of  the  action,  and  such  as  could  not  be  consid- 
ered in  it ;  it  arose  from  the  contents  of  the  hand-bill,  and  the 
allegation  that  it  was  slanderous  and  contained  a  challenge ; 
that  trespass  quare  clausum  fregit  and  slander  could  not  be  united, 
but  if  the  slander  were  actionable  it  must  be  separately  charged  ; 
the  two  acts  were  different,  and  in  this  action  the  damages  could 
be  aggravated  only  by  matters  of  the  same  character  as  the  tres- 
pass itself,  which  were  forcible  and  a  continuation  of  it;  that 
words  never  are  evidence  to  aggravate  a  trespass,  and  the  court 
ought  not  here  to  make  the  first  precedent ;  that  if  the  slander 
could  be  joined  it  should  be  distinctly  set  out  with  proper  innuen- 
does, allegations  and  averments  that  the  defendant  might  plead  to 
it  and  justify  if  he  chose,  so  that  this  might  be  a  bar  to  another 
action,  and  that  the  distinction  of  actions  and  of  offences  might 
be  maintained. 

That  even  if  it  were  proper  to  consider  the  hand-bill,  yet  the 
jury  had  been  misled  by  considering  it  as  a  challenge ;  that  it 
was  not  a  challenge  the  court  had  so  decided,  and  General  Day- 
ton had  so  explained,  as  did  also  the  writing  at  the  end  of  it ;  the 
object  of  it  was  a  peaceable  and  friendly  explanation  of  wrongs 
which  defendant  supposed  had  been  done  to  him.  That  if  it  were 
a  challenge,  yet  it  was  not  a  ground  on  which  damages  could  be 
given ;  a  challenge,  in  itself,  never  was  or  could  be  the  founda- 
tion of  an  action ;  no  law  gives  compensation  to  the  challenged ; 
it  is  a  public  offence  against  morals  and  the  peace  of  society,  and 
must  be  punished  as  such,  and  if  pecuniary  punishment  be  in- 
flicted it  should  be  for  the  benefit  of  the  public  treasury  ;  it  works 
no  private  injury ;  it  does  no  harm  except  to  the  feelings,  and 
injury  to  these  alone  is  never  actionable,  and  if  actionable,  must 
be  directly  and  not  indirectly  charged  and  punished. 

*526 


2  SOUTH.]  FEBRUARY  TERM,  1819.  621 

Ogden  v.  Gibbons. 

But  even  if  a  challenge  be  actionable,  and  may  be  joined  to 
trespass  quare  clausum  jregit,  yet  have  the  jury  erred  in  consid- 
ering this  as  without  excuse  and  justification  ;  it  was  excused  by 
the  facts  in  the  case,  and  by  public  sentiment  and  example ;  and 
*the  court  will  look  into  all  the  facts  to  see  how  far  they  justify 
the  verdict.  2  WUs.  %05.  If  the  hand-bill  were  false  it  was 
no  slander  and  did  no  specific  damage ;  if  true  it  was  no  ground 
for  the  verdict.  Coryell  refused  to  discount,  and  against  his 
agreement  collected  the  note  in  New  York ;  this  was  the  com- 
mencement of  the  difficulty  ;  the  plaintiff'  interfered  without  cause, 
and  the  defendant  was  arrested,  and  his  feelings  and  interests 
wounded ;  he  complained  ;  the  plaintiff  apologized  ;  yet  he  com- 
menced a  new  warfare  by  interference  in  his  family  disputes. 
The  defendant  again  asks  for  explanation ;  it  is  insultingly  re- 
fused, and  the  hand-bill  is  posted.  The  letters  were  written  and 
the  hand-bill  put  up  under  the  unfavorable  impression  created  by 
the  plaintiff's  conduct,  and  it  justified  warmth  of  feeling  and 
expression.  The  real  injury  was  all  on  the  defendant ;  on  the 
plaintiff  only  imaginary.  The  terms  of  the  hand-bill,  though 
hard,  were  justified  by  the  facts  until  explained,  which  they  were 
not  when  it  was  written  and  put  up.  The  letters  were  sent  by 
one  with  whom  plaintiff  transacted  business,  and  an  answer  might 
have  been  given  him  without  reposing  confidence  in  the  messen- 
ger, or  trusting  an  enemy.  The  plaintiff  ought  to  have  denied 
his  interference  in  justice  to  himself  and  to  the  defendant.  In 
seeking  his  satisfaction,  even  if  defendant  did  challenge,  he  is 
fully  excusable.  He  was  educated  in  the  belief  that  such  an  act 
was  just  and  honorable ;  he  did  not  run  counter  to  public  opin- 
ion, nor  shock  the  mind  by  new  and  unheard-of  outrage  ;  he 
trod  in  the  footsteps  of  some  of  the  first  men,  and  performed  an 
act  consecrated  by  the  best  blood  of  the  country,  and  if  it  desrrvcs 
punishment  he  alone  ought  not  to  be  made  to  bear  the  whole  of 
it,  and  suffer  for  example's  sake,  because  others  are  in  like  man- 
ner guilty. 

That  no  specific  damages  are  laid  as  arising  from  this  cause, 
and  therefore,  even  if  suffered,  none  can  be  recovered  in  this 
action.  Peake  N.  P.  46;  Bui.  86,  89;  SaJlk.  6J$  ;  10  Co.  R. 

*527 


622  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Ogden  v.  Gibbons. 

130;  1  Sid.  225;  2  Saun.  171;  1  Tidd  391;  6  Bac.  55(J,  60S, 
626.  That  the  whole  damages  have  been  given  to  the  plaintiff; 
whereas,  if  injury  is  done  to  the  possession,  what  is  recovered  in 
this  action  must  be  in  part  due  to  Barber,  for  he  had  a  joint  pos- 
session, though  he  claims  no  property  or  ownership.  That  in 
cases  of  injury  to  the  freehold  the  court  have  full  power  to  rem- 
edy a  finding  of  excessive  damage,  or  damage  beyond  the  actual 
harm  to  the  property,  whatever  doubt  may  exist  as  to  their 
power  in  *torts  to  the  person  where  the  damages  are  ideal.  1  Bur. 
393  ;  2  Wils.  252, 405  ;  3  Wils.  61 ;  2  Bl  R.  91$  ;  4  Mass.  41 ; 
Penn.578;  6  Bac.  626 ;  1  Mass.  12.  That  the  court  will 
grant  a  new  trial  here,  because  the  damages  given  are  outrageous ; 
against  the  sentiment  of  mankind ;  the  effect  of  partiality,  pre- 
judice, passion,  or  corruption ;  of  prejudice  against  the  defend- 
ant ;  of  partiality  in  favor  of  the  plaintiff;  evils  which  ought  to 
be  cqrrected  by  the  court,  where  partialities  and  prejudice  do  not 
operate. 

Attorney- General  and  R.  Stockton,  for  plaintiff,  argued  in  op- 
position to  the  rule — 1.  That  there  had  been  a  full  and  fair  trial, 
and  no  surprise  by  the  variance;  that  the  whole  declaration 
charged  Thomas  Gibbons,  and  therefore  left  no  doubt  who  was 
meant ;  that  the  copy  was  given  as  matter  of  professional  cour- 
tesy, not  required  by  law,  and  the  law  imposed  no  pledge  of 
accuracy ;  that  with  reasonable  and  common  prudence  he  might 
have  guarded  himself;  that  he  was  bound  to  look  to  the  files  of 
the  office  where  the  declaration  had  been  for  twelve  months,  and 
where  the  error  would  have  been  at  once  corrected,  as  it  might 
also  by  the  transcript  twice  before  sent  down,  and  by  the  indict- 
ment found  on  this  same  matter ;  that  there  really  was  no  variance, 
but  if  there  were  it  was  not  of  a  fatal  kind ;  to  be  fatal  it  must 
not  merely  be  an  abbreviation  but  must  make  a  word  of  another 
signification,  in  which  case,  as  to  strict  identity,  it  would  be  a  differ- 
ent paper.  Cow.  229 ;  1  Leach  172,  227 ;  5  Johns.  1,  30;  2 
Wils.  160;  5  Mod.  167;  3  Salk.  224;  ®  Salk.  660;  1  T.  R.  240. 
That  if  the  variance  were  in  the  declaration,  as  the  plea  was  not 
guilty,  as  it  was  matter  of  evidence,  and  the  jury  have  found  it,  the 

*528 


2  SOUTH.]  FEBRUARY  TERM,  1819.  623 

Ogden  v.  Gibbons. 

court  would  not  disturb  the  verdict.  2.  As  to  the  absence  of 
the  witness,  that  postponement  of  the  trial  was  a  matter  of  sound 
discretion  which  would  not  be  investigated  at  bar,  because  the 
whole  circumstances,  conduct  and  manner  could  not  there  be 
known.  1  Set.  420  ;  Barnes  44%-  That  the  affidavit  was  defi- 
cient in  three  respects — 1.  In  not  setting  forth  due  diligence. 
He  was  in  laches,  the  case  had  before  been  twice  noticed,  yet  In- 
failed  to  takeout  his  subpoena  until  a  little  before  the  circuit,  but 
he  did  not  inquire  at  the  time  of  trial  whether  witness  had  re- 
turned, nor  .did  it  appear  but  he  was  at  home.  2.  The  affi- 
davit did  not  show  the  nature  and  materiality  of  the  testimony 
to  be  given  by  him,  nor,  3.  That  the  fees  were  left  to  induce  his 
atten*dance  should  he  return  in  time — that  there  was  every  ap- 
pearance of  any  affected  delay.  1  Bl.  Rep.  514;  Bur.  1514- 
He  had  sworn  to  the  materiality  of  Trumbull,  yet  did  not  call 
him  on  this  trial,  and  he  did  not  now  satisfy  this  court  that 
hewas  injured,  by  showing  the  materiality  of  Burt's  testimony. 

In  considering  the  propriety  of  the  verdict  it  is  said  the  hand- 
bill and  the  character  of  the  matter  it  contains  cannot  properly 
be  considered  in  this  action ;  but  this  is  not  so.  A  plaintiff  may 
have  one  M'rit  for  several  trespasses  (FUz.  197—9),  as  entering  his 
house,  beating  his  servants,  or  taking  away  his  goods,  or,  as  in 
this  case,  affixing  a  libel  to  his  door.  The  circumstances  attend- 
ing the  trespass,  and  the  conduct  after  entering,  as  the  violence, 
abuse  or  calumny,  may  be  shown  in  aggravation.  Salk.  119, 
646;  10  Co.  13;  6  Mod.  128;  8  Sac.  626;  1  Tidd  391.  If 
this  were  not  so,  all  distinction  would  be  taken  away,  and  all 
trespasses  become  simple  and  alike.  The  hand-bill  must  be 
looked  into  to  see  the  nature  of  the  trespass.  The  true  distinc- 
tion is,  that  in  this  action,  plaintiff  cannot  prove  an  additional 
fact,  which  may  be  the  ground  of  action  in  itself,  unless  it  be 
stated  in  his  declaration ;  if  it  be  there  stated  then  he  may 
prove  it,  provided  it  be  part  of  the  same  transaction.  The  plain- 
tin0  complains  of  the  transaction  at  that  time;  it  is  one  entire 
transaction,  and  is  not  to  be  separated.  2  WUs.  252. 

Damages  for  an  injury  of  this  sort  are  discretionary,  and  to  be 
regulated  by  a  vast  variety  of  circumstances ;  by  the  state,  de- 

*529 


624  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Ogden  v.  Gibbons. 

gree,  trade,  profession,  rank,  condition  and  estate  of  the  parties. 
2  Wits.  160,  205,  246 ;  Cowp.  131,  231.  They  are  peculiarly 
and  emphatically  left  to  the  sound  discretion  of  the  jury,  and  the 
verdict  will  not  be  disturbed  unless  they  are  enormous,  such  as 
all  mankind  are  ready  to  exclaim  against  at  first  blush  ;  such  as 
carry  internal  evidence  of  intemperance  in  the  minds  of  the  jury, 
and  not  merely  such  as  the  court  would  not  have  been  willing  to 
give.  2  Wils.  160,  207,  246,  252,  405;  Cowp.  23  ;  2  Bl  R. 
946  ;  7  Bac.  587,  667  ;  9  Johns.  45  ;  2  Johns.  63  ;  4  Doll.  390  ; 
2  Penn.  580;  5  Mod.  150;  Palm.  314;  1  Leo.  97 j  10  Johns. 
443 ;  4  Mass.  1. 

The  damages  here  are  not  enormous.  They  are  justified  by 
the  character  of  the  parties,  and  the  circumstances  of  the  case. 
The  defendant  has  enjoyed  every  advantage  of  education  and  re- 
fined society ;  has  made  the  law  his  study,  and  is  possessed  of 
^immense  wealth.  The  plaintiff  sustains  a  high  character,  and  has 
enjoyed  the  confidence  of  his  fellow-citizens.  In  May  the  defend- 
ant sent  a  libel,  and  called  the  plaintiff's  conduct  rascally ;  he 
sent  it  by  General  Dayton,  the  friend  of  plaintiff 's  youth  but 
the  enemy  of  his  advanced  age,  when  there  was  a  post-office  in 
the  village,  and  both  had  servants  by  whom  it  might  have  been 
carried.  It  was  sent  unsealed,  not  to  his  office,  but  to  a  tavern, 
where  he  was  engaged  in  public  business.  In  July  he  sent  a 
challenge  by  General  .Dayton  and  required  the  plaintiff  to  com- 
mit his  explanations,  his  motives,  his  character,  to  the  bosom  of 
his  enemy.  The  plaintiff  saw  the  conspiracy  against  his  life,  but 
he  met  it  like  a  Christian  ;  submitted  to  the  laws  of  God  and  the 
land,  and  appealed  to  the  justice  of  his  country  ;  and  the  appeal 
was  not  in  vain.  In  the  whole  of  the  transaction  the  plaintiff  did 
the  defendant  no  intentional  wrong ;  he  inadvertently  occasioned 
an  injury  by  having  him  arrested,  but  he  made  a  prompt  and 
manly  apology.  The  jury  have  properly  estimated  the  facts,  and 
the  court  will  -have  respect,  in  deciding  this  motion,  to  the  injured 
feelings  of  the  plaintiff,  to  the  principles  of  public  morals,  and  to 
the  situation  of  the  defendant.  2  Ld.  Ray.  995 ;  9  Johns.  51. 

No  difficulty  can  arise  from  the  idea  that  Barber  held  a  joint 
possession  where  the  trespass  was  committed.  No  such  posses- 

*530 


2  SOUTH.]          FEBRUARY  TERM,  1819.  625 

Ogden  r.  Gibbons. 

sion  existed,  or  if  it  did  the  injury  was  to  the  plaintiff  only,  and 
he  has  recovered  the  only  damages  due  to  himself. 

The  parties  pressed  the  court  for  an  immediate  decision  upon 
the  rule.  The  court,  therefore,  pronounced  its  opinion  after  the 
argument. 

SOUTHARD,  J.,  remarked :  I  should  have  felt  better  satisfied 
to  have  taken  a  little  longer  to  look  into  this  matter ;  but,  as  I 
now  see  no  cause  to  doubt,  I  am  willing  to  yield  to  the  request 
of  the  parties.  Four  questions  seem  to  have  been  pressed  upon 
the  consideration  of  the  court  by  the  argument  of  this  rule.  1. 
Whether  the  trial  ought  to  have  been  postponed  at  the  circuit. 
2.  Whether  the  possession  of  Barber  was  such  as  to  render  the 
plaintiff's  recovery  illegal.  3.  Whether  the  contents  of  the 
hand-bill  were  a  proper  subject  of  consideration  in  assessing  the 
damages.  And  4.  Whether  the  damages  were  so  excessive  as 
to  call  for  an  interference  with  the  verdict.  I  will  endeavor  to 
express  my  view  of  each  of  these  points. 

*And  1.  As  to  the  postponement  of  the  trial.  A  party  who 
has  encountered  the  expense  of  a  preparation  for  the  circuit  is 
entitled  to  a  trial,  unless  his  adversary  can  satisfy  the  court  that 
he  has  exhibited  due  diligence  on  his  part  but  has  not  been  able 
to  come  prepared,  and  that  justice  will  probably  not  be  done  if 
the  trial  progresses.  In  ordinary  cases,  upon  a  first  application 
for  a  postponement,  an  affidavit  of  the  absence  of  a  material 
witness  who  has  been  legally  subpoenaed  is  sufficient.  But  a 
second  or  third  application  by  the  same  party  naturally  induces 
a  suspicion  that  he  is  not  so  often  unfortunate,  but  is  seeking 
delay  ;  and  then,  more  particularity  and  more  evidence  is  re- 
quired. But  whether  it  be  the  first  or  third  application,  it  is 
always  addressed  to  the  sound  discretion  of  the  court  and  is  re- 
fused or  granted  on  suoh  terms  as  justice  to  the  parties  requires,  (a) 
The  judge  before  whom  it  is  made  has,  in  the  manner  and  ap- 
pearance and  acts  of  the  applicant,  means  of  a  correct  decision 
with  which  the  court  at  bar  cannot  be  furnished.  His  determi- 

(o)  See  Stokea  v.  Oorr,  £  Horr.  451 ;  FulUr  ads.  Den,  Soxton,  Spen.  61 ;  State 
v.  ZeUers,  2  Hal.  ££0. 

*531  40 


626  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Ogden  v.  Gibbons. 

nation  of  the  question,  therefore,  affords  strong  presumption  of 
correctness,  but  it  is  not  conclusive.  If  a  clear  case  of  mistake 
on  his  part  be  made  out,  and  we  perceive  that  injustice  has  been 
done,  the  evil  will  be  remedied  by  a  new  trial.  But  the  inquiry 
always  is,  Has  injustice  been  done?  has  the  party  been  injured ? 
If  he  have  not,  no  good  reason  can  be  given  why  he  should  re- 
ceive the  favor  of  trying  his  cause  over  again. 

In  the  present  case,  the  defendant  supposes  that  the  chief- 
justice  erred  on  two  points.  1.  On  account  of  the  variance  in 
the  word  "  Thomas,"  between  the  circuit  record  and  the  copy  of 
the  declaration  furnished  to  him  by  plaintiff's  attorney,  (a) 

I  think  there  is  more  than  one  sufficient  answer  to  the  defend- 
ant's complaint  on  this  point.  The  record  throughout  uses  the 
word  "  Thomas ;  "  the  copy  of  the  declaration  does  the  same ;  the 
abbreviation  which  is  subscribed  to  the  hand-bill  is  not  a  word 
of  different  signification,  but  means  precisely  the  same  thing. 
The  defendant  could  not,  therefore,  have  been  left  in  doubt  or 
been  deceived  by  the  copy  furnished ;  and  I  do  not  think  that 
the  variance  would  have  been  fatal  in  any  ordinary  case  of  plead- 
ing, even  if  it  existed  between  the  evidence  and  the  record.  It 
is  very  clear  he  has  not  been  deprived  of  any  possible  means  of 
preparation  and  defence ;  nor  has  he  been,  in  the  slightest  de- 
gree, injured  in  the  result.  The  record  and  the  evidence  corres- 
pond. *But  2.  The  provisions  of  our  law  and  the  course  of 
our  practice  require  the  defendant  to  look  to  the  files  of  the 
court,  not  only  to  see  when  the  declaration  is  filed,  but  what  it 
contains.  And  if  he  chooses  to  depart  from  his  interest  and 
duty  in  this  respect,  and  derive  his  information  from  other 
sources,  he  must  take  the  consequences  upon  himself.  If  he 
relies  upon  copies  of  pleadings  furnished  by  any  person  but  the 
clerk,  and  he  is  led  into  error,  as  the  law  gives  him  no  pledge 
of  correctness,  he  must  not  apply  to  the  court  to  relieve  him 
from,  the  effects  of  his  own  want  of  care  and  caution.  In  this 
case,  also,  the  defendant  had  much  to  put  him  on  his  guard  and 
to  prevent  surprise.  The  circuit  record  had  been  twice  before 

(a)  Probasco  v.  Probaseo,  Penn.  *1012;  Youngs  v.  Sunderland,  S  Or.  S8. 

*532 


2  SOUTH.]  FEBRUARY  TERM,  1819.  627 

Ogden  r.  Gibbons. 

carried  down,  and  the  hand-bill  had  been  presented  to  his  obser- 
vation on  a  still  more  important  occasion.  He  ought  not  to 
have  been  negligent  in  examining  it. 

The  second  reason  offered  for  postponing  the  trial  was  the 
absence  of  the  witness.  I  cannot  help  believing  that  there  is 
more  in  the  fact  that  the  fees  were  not  left  with  the  copy  of  the 
subpoena,  than  seemed  to  be  supposed  by  the  counsel  on  either 
side,  from  the  manner  of  their  argument.  It  is  an  express  re- 
quirement of  our  statute  that  the  fees  shall  be  paid,  and  the 
amount  is  fixed.  The  third  section  of  the  act  concerning  wit- 
nesses (Pat.  401)  provides  "  that  if  any  person  on  whom  lawful 
process  shall  have  been  duly  served  to  testify  &c.,  and  to  whom 
.»•/«///  have  been  paid  or  tendered,  at  the  time  of  such  service,  fifty 
cents,  if  he  is  to  serve  in  the  county  &c.,  shall  not  appear  accord- 
ing to  the  tenor  of  said  process,  having  no  lawful  or  reasonable 
let  or  impediment  to  the  contrary,  he  shall,  for  every  offence, 
forfeit "  &c.  Can  we,  under  the  words  of  this  section,  consider 
a  witness  lawfully  subpoenaed  for  the  purpose  of  punishment  for 
non-attendance  unless  the  fee  be  paid  or  tendered  ?  Clearly  not. 
And  can  we  say  that  the  process  has  not  been  legally  served 
when  we  are  about  to  punish  the  witness,  and  yet  that  it  has 
been  legally  served  when  we  are  inquiring  into  the  default  of  the 
party  and  determining  whether  he  has  used  due  diligence  ?  that 
it  is  legal  for  one  purpose  and  not  for  another  ?  This  would 
seem  an  unfit  state  of  things.  Besides,  it  is  altogether  reason- 
able that  this  provision  of  the  statute  should  be  strictly  complied 
with.  The  witness  comes  to  render  a  service  to  the  party ;  his 
compensation  is  fixed ;  he  often  needs  it  to  bear  his  expenses, 
and  he  ought  *to  receive  it.  He  is  not  bound  to  serve  first  and 
rely  upon  the  fairness  of  the  party  or  a  suit  at  law  to  obtain  his 
fee  afterwards.  In  England  no  witness  is  bound  to  appear  at 
all,  even  if  subpoenaed,  unless  his  reasonable  expenses  be  ten- 
dered to  him ;  nor  if  he  does  appear,  is  he  bound  to  give  evi- 
dence until  such  charges  are  actually  paid  to  him.  S  Bl.  Com. 
369  ;  1  Sir.  510  ;  2  Str.  1150.  Here  the  statute  fixes  the  sum 
to  be  paid.  A  party,  therefore,  seems  to  me  not  regularly  to 
serve  his  process,  but  to  stop  short  of  strict  and  legal  diligence, 

*533 


628  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Ogden  v.  Gibbons. 

when  he  does  not  deliver  or  tender  to  the  witness  his  fee,  at  the 
time  of  serving  the  writ.  A  delivery  of  a  subpoena,  or  leaving 
a  copy  without  it,  ought  not  to  avail  where  the  service  is  brought 
in  question.  Wherever  the  copy  is  left  with  a  view  to  produce- 
attendance,  the  money  ought  also  to  be  left.  But  the  question 
here  seems  rather  to  be  whether  the  defendant  was  bound,  under 
the  information  he  received,  to  leave  either  the  one  or  the  other.. 
Passing  by  this  difficulty,  therefore,  let  us  look  further  into  this 
point,  and  I  think  enough  will  appear  to  justify  the  decision  of 
the  chief-justice  and  to  prevent  us  from  according  to  the  defend- 
ant the  favor  which  he  asks  for  this  cause. 

It  is  to  be  recollected  that  this  was  the  third  effort  at  postpone- 
ment, and  for  the  same  cause — the  absence  of  a  material  witness. 
The  trial  was,  therefore,  properly  ordered  on.  1.  Because  the 
process  to  subposna  the  witness  ought  to  have  been  taken  out 
earlier  and  greater  diligence  exhibited.  2.  It  was  not  shown 
that  the  witness  was  expected  by  the  next  term  or  at  what  par- 
ticular time.  It  might  be  that  he  was  expected  at  a  period  to 
which  the  trial  could  not  reasonably  be  postponed.  3.  The  de- 
fendant ought  to  have  shown  that  the  witness  had  not  returned 
from  the  westward  and  could  not  be  brought  before  the  court  at 
that  time.  All  the  information  given  of  his  absence  was  the 
declaration  of  his  wife  that  he  was  gone  and  was  not  expected 
back  in  time ;  but  there  is  no  proof  that  he  was  not  then  at 
home.  For  aught  that  appears  he  might  have  been  there,  and 
had  the  process  been  served  on  him  and  the  fee  delivered,  would 
have  attended.  4.  The  materiality  of  his  evidence  was  not  suffi- 
ciently shown.  It  was  sworn  to  in  the  same  way  as  in  an  ordi- 
nary application  for  a  first  postponement.  The  defendant  should 
have  done  more.  He  should  have  satisfied  the  judge,  by  a  dis- 
closure of  what  he  intended  to  prove  by  him,  that  what  he  knew 
was  material  to  the  defence.  Nor  is  it  a  suf  *ficient  answer  that 
the  court  did  not  require  this  to  be  done.  It  was  not  the  busi- 
ness of  the  court  to  prescribe  in  what  way,  and  for  what  reasons, 
the  defendant  should  make  his  application,  but  to  decide  upon 
its  merits  as  he  presented  it.  But  in  my  view,  the  most  im- 
portant consideration  on  this  question  still  remains.  The  foun- 

*534 


2  SOUTH.]  FEBRUARY  TERM,  1819.  629 

Ogden  v.  Gibbons. 

•dation  of  this  motion  is  the  injury  which  has  been  done  to  the 
•defendant.  How  has  he  been  injured  ?  By  being  deprived  of 
his  evidence.  If  this  witness  could  say  nothing  in  his  favor  he 
has  not  been  injured,  and  there  is  no  ground  for  this  motion. 
•Could  this  witness  say  anything  in  his  favor  ?  We  know  nothing 
•on  this  point.  It  rests  upon  the  allegation  of  the  defendant 
-alone.  Now,  we  do  not  sustain  such  rules  as  this  and  grant  new 
trials  upon  the  allegation  of  parties.  We  are  as  little  informed 
whether  the  witness  has  returned  and  his  testimony  could  now 
be  procured.  I  am  not  willing  to  disturb  a  verdict,  to  put  the 
parties  to  the  expense  of  another  hearing  before  a  jury,  without 
-a  full  conviction  that  the  verdict  might,  in  some  degree,  be 
affected  by  the  evidence  which  was  excluded.  The  defendant 
has  no  confidence  in  the  value  of  this  evidence,  or  he  has  been 
strangely  negligent  in  not  exhibiting  it  to  us.  Upon  this  first 
•question,  therefore,  I  do  not  think  the  chief-justice  decided  incor- 
rectly ;  and  if  I  believed  that  he  did,  I  should  still  be  opposed 
to  this  rule,  unless,  from  sufficient  evidence,  I  was  convinced  that 
the  defendant  had  been  injured  by  the  absence  of  his  witness, 
and  there  was  reasonable  ground  to  believe  that  his  testimony 
might  have  some  operation  upon  the  verdict.  We  have  no  such 
-evidence. 

2.  The  second  question  to  be  considered  is,  whether  the  pos- 
session of  Barber  was  such  as  to  make  the  recovery  of  the 
plaintiff  illegal.  But  little  need  be  said  upon  this  question.  If 
I  correctly  understand  the  evidence,  Barber  is  a  very  near  con- 
nection of  the  plaintiff;  he  uses  one  of  the  rooms  in  his  office  for 
the  purpose  of  transacting  the  various  business  in  which  he  is 
engaged  without  any  right  in  it  or  authority  over  it,  except  what 
is  derived  from  the  implied  or  express  permission  of  the  plaintiff. 
He  pays  no  rent  and  claims  no  property  or  possession  which  he 
«ould  demand  or  enforce  by  legal  means.  Like  a  guest,  he  uses, 
possesses  and  enjoys  the  room  through  the  friendship  and  hwpi- 
tality  of  his  father-in-law.  If  this  be  so,  the  question  is  at  an 
«nd.  Can  it  be  believed  that  this  plaintiff,  because  he  kindly 
permits  a  relation  to  use  his  property  along  with  him,  loses  his 
right  *and  control  over  that  property  and  cannot  bring  a  suit  for 

•636 


630  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Ogden  v.  Gibbons. 

injury  done  to  it  without  the  permission  of  that  relation  and 
joining  him  in  the  action  ?  It  will  not  seriously  be  contended.. 
Why  should  Barber  unite  in  the  action  ?  Has  he  been  injured  f 
Can  he  recover  damages  ?  Did  the  plaintiff  sue  for  or  recover 
damages  for  what  he  has  suffered  on  this  occasion  ?  Not  at  alL 
Why,  then,  disturb  the  verdict  on  this  account.  Besides,  if 
Barber  had  a  possession  in  common,  and  the  defendant  entered 
upon  it  for  the  sole  purpose  of  inflicting  on  the  plaintiff  alone- 
an  injury  like  the  one  complained  of,  I  have  no  idea  that  he 
must  necessarily  be  united  in  the  action. 

3d  question.  Were  the  contents  of  the  hand-bill  a  proper  sub- 
ject of  consideration  with  the  jury  ?  There  is  no  doubt  that 
they  were  considered  and  formed  the  principal  item  in  the  heavy 
account  which  was  found  against  the  defendant,  and  if  they 
ought  to  have  been  excluded  from  the  view  of  the  jury,  I  cor- 
dially agree  with  his  counsel  that  the  damages  are  enormous,, 
are  outrageously  excessive:  $5,000  for  passing  over  a  gravel 
walk  of  half  a  dozen  yards  in  length  and  putting  a  man's  foot 
upon  the  sill  of  the  door,  would  be  intolerable,  no  matter  who 
the  parties  or  what  their  situation.  But  is  this  the  real  case  ? 
Of  what  does  the  plaintiff  complain  in  his  declaration  ?  He 
complains  that  the  defendant  illegally  entered  upon  his  premises 
and  put  upon  his  door  an  insulting  and  libelous  hand-bill.  Is. 
this  hand-bill  to  be  regarded  as  part  of  his  cause  of  complaint,. 
or  is  it  not  ?  Much  ingenuity  was  certainly  displayed  by  the- 
counsel  in  the  discussion  and  application  of  the  cases  to  this 
question,  bnt  the  conclusion  at  which  they  arrived  does  not  very 
well  correspond  with  the  principles  of  correct  pleading  or  the 
law  of  evidence.  I  am  not  here  able  to  examine  the  cases,  nor,, 
perhaps,  is  it  necessary ;  we  may  come  to  a  satisfactory  conclu- 
sion without.  I  understand  it  to  be  admitted  that  it  was  proper 
to  charge  and  prove  the  putting  up  of  the  hand-bill  because  it 
was  of  the  same  character  with  and  a  part  of  the  trespass;  but 
not  proper  to  charge  or  prove  the  contents  of  the  hand-bill 
because  they  do  not  partake  of  the  character  of  the  trespass,  and 
a  remedy  for  them  must  be  sought  by  an  action  on  the  case  for 
the  libel  or  slander. 


2  SOUTH.]  FEBRUARY  TERM,  1819.  631 

Ogden  r.  Gibbons. 

But  I  do  not  perceive  how  the  two  are  to  be  separated.  The 
plaintiff  complains  of  a  trespass.  The  jury  are  to  determine  the 
*extent  of  it  and  the  injury  resulting  from  it.  To  do  this  they 
must  not  only  know  what  was  done,  but,  as  far  as  possible,  the 
motives  with  which  it  was  done.  How  will  they  learn  them  ? 
By  being  informed  that  defendant  passed  over  the  gravel  walk  ? 
No ;  for  this  was  not  all  he  did,  and  this  he  might  have  done 
with  the  best  intentions,  and  have  committed  no  punishable  tres- 
pass.  That  he  put  his  foot  upon  the  sill  and  left  a  paper  there  ? 
No ;  for  these  acts  might  have  been,  and  no  harm  done  to  the 
plaintiff.  But  they  might  also  have  been,  and  the  plaintiff  deeply 
wounded  by  them.  How  is  the  jury,  then,  to  say  whether  he 
was  or  was  not  injured?  How  are  they  to  determine  whether 
the  defendant  came  as  friend  or  foe?  to  leave  a  paper  containing 
information  salutary  to  his  safety  or  poisonous  to  his  reputation 
and  peace?  to  commit  a  trespass  or  to  do  a  kindness?  It  can 
only  be  done  by  looking  into  the  contents  of  the  hand-bill ;  and 
shall  the  jury  be  compelled  to  decide,  and  yet  precluded  from  this 
only  means  of  judging?  Suppose  the  contents  of  the  bill  had 
been  of  a  kind  and  friendly  nature,  and  designed  expressly  for 
benefit  to  the  plaintiff,  would  not  the  defendant  have  been  permit- 
ted to  show  it  ?  and  would  not  the  jury  in  such  case  have  refused 
the  plaintiff  anything  ?  Yet  the  rule  must  operate  both  ways. 
A  man  enters  my  house  and  strikes  my  child.  I  may  charge  and 
prove  both  acts,  and  he  must  compensate  for  both.  But  he  not  only 
enters  my  house  and  strikes  my  child,  but  when  he  does  it,  adds  the 
most  malignant  and  unfounded  slanders  of  him.  May  I  not 
charge  or  prove  these  to  show  the  temper  with  which  he  did  it,  and 
the  extent  of  the  wrong?  I  may,  and  the  jury  will  estimate  his 
acts  accordingly.  I  understand  the  true  rule  on  this  point  to  be 
this :  in  trespass  you  may  charge  and  prove  the  whole  circum- 
stances accompanying  the  act,  and  which  were  a  part  of  the  res 
gestce,  in  order  to  show  the  temper  and  purposes  with  which  the 
trespass  was  committed,  and  the  extent  of  the  injury.  A  contrary 
rule  would  certainly  produce  the  effect  argued  by  the  plaintiff's 
counsel.  It  would  take  away  all  distinction  from  acts  of  trespass. 
And  if  this  be  the  rule,  its  application  to  the  present  case  is  not 

*536 


632  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Ogden  v.  Gibbons. 

difficult.  The  hand-bill  was  properly  proved,  and  was  good 
evidence  in  estimating  the  damages. 

4.  The  remaining  question  to  be  considered  is,  Are  the  damages 
excessive  ?  such  as  call  for  our  interference  ?  (a) 

In  giving  an  answer  to  this  question  we  cannot  act  safely  un*tii 
we  satisfy  ourselves  what  is  the  import  of  that  hand-bill.  On 
the  part  of  the  defendant,  his  counsel  at  the  trial,  and  again  here, 
allege  that  the  letter  was  designed  to  obtain  a  peaceable  and 
friendly  interview ;  an  amicable  explanation  of  serious  wrongs 
which  he  had  suffered  from  the  hands  of  the  plaintiff,  and  that  the 
putting  up  of  the  hand-bill  was  designed  to  bring  it  to  the  notice 
of  the  plaintiff  and  thus  enforce  the  meeting.  And  they  appeared, 
among  other  arguments  to  prove  their  positions,  to  derive  some 
confidence  from  the  decision  of  this  court  in  the  case  of  State  v. 
Gibbons,  (b)  That  case  has  certainly  been  ill  understood  if  it 
be  supposed  that  this  court  expressed  the  idea  that  this  letter  did 
not  contain  a  challenge.  The  decision  went  on  altogether  differ- 
ent grounds,  and  an  expression  of  opinion  on  that  point  was 
carefully  avoided  ;  one  of  the  court  adding  "  whether  challenge 
or  not  is  always  a  question  for  the  jury  upon  the  whole  evidence." 
At  the  trial  the  counsel  for  the  plaintiff  denied  the  conclusions  in 
favor  of  the  defendant.  It  was  for  the  jury  to  pass  between  them, 
and  the  amount  of  their  verdict  is  conclusive  proof  of  the  light 
in  which  they  viewed  it.  They  have  doubtless  considered  the 
letter  as  a  challenge,  as  a  demand  that  the  dispute  should  be 
ended  with  blood ;  and  putting  it  up  as  proclaiming  and  posting 
the  plaintiff  at  his  own  door  as  one  who  had  deeply  and  malig- 
nantly injured  another,  and  had  neither  the  honesty  nor  courage 
to  give  him  satisfaction.  If  in  this  opinion  of  the  jury,  they  had 
no  evidence  to  support  them,  and  there  is  clear  and  manifest 
error,  though  it  was  a  matter  within  their  province,  we  must  cor- 
'rect  their  mistake.  But  I  cannot  perceive  clear  proof  that  they 
did  err.  The  language  of  the  letter  itself,  the  manner  of  send- 

(a)  See  Thompson  v.  Morris  Caned,  2  Harr.  480  ;  Berry  :ids.  Vrf eland,  1  Z<ib. 
1SS;  Winter  v.  Peterson,  4  Zab.  524;  Phillips  v.  Phillips,  5  Vr  208;  Vunck  v. 
Hull,  Penn.  *815  ;  Allen  ads.  Craig,  1  Or.  29^. 

(6)  State  v.  Gibbons,  1  South.  40. 

*537 


2  SOUTH.]  FEBRUARY  TERM,  1819.  888 

Ogden  v.  Gibbons. 

ing  it,  the  printing  and  publishing  of  the  hand-bill,  the  posting 
of  it  on  the  door,  and  the  language  which  he  used  to  Ephraim 
Clark,  are  all  strong  indications  of  the  temper  that  was  felt  and 
the  object  aimed  at — too  strong  for  me  here  and  on  this  motion 
to  question  the  decision  of  the  jury.  The  letter  must  be  regarded 
as  a  challenge;  sealing  it  to  the  door  as  designed  to  irritate, 
wound  and  disgrace  the  plaintiff. 

Having  fixed  what  we  are  to  consider  as  constituting  the  tn-- 
pass,  we  may  now  form  an  opinion  whether  the  damages  are  ex- 
<«ssive.  And  here  it  is  necessary  for  me  to  remark  that  this  is 
a  case  most  decisively  within  the  province  of  the  jury.  It  is 
not  simply  and  alone  a  case  for  a  tort  done  to  property,  the  value 
of  *  which  may  be  ascertained  by  evidence,  and  where  there  are 
fixed  rules  and  principles  to  measure  the  damages ;  but  it  is  one 
of  character,  of  sentiment,  of  feeling ;  one  where  the  court  is 
not  entrusted  with  the  power  to  estimate  the  wrong,  but  the  jury 
must  exercise  their  discretion ;  a  case  depending  much  on  the 
situation  and  circumstances,  as  well  of  the  party  injured  as  of 
him  who  did  the  injury.  In  such  a  case,  although  the  verdict 
may  be  set  aside  if  the  damages  given  are  so  unreasonable  as  to 
indicate  a  want  of  ordinary  discretion  in  the  jury,  so  outrageous 
as  to  exhibit  passion,  prejudice,  partiality  or  corruption,  yet  do  I 
feel  no  authority  to  touch  it,  unless  they  be  evidently  such.  Be- 
cause I  may  feel  that  if  I  had  been  a  juror  I  should  have  dis- 
charged my  duty  by  giving  less,  I  am  not  therefore  at  liberty  to 
say  that  less  shall  be  given.  This  power  is  entrusted,  and  1 
think  wisely  entrusted,  to  other  hands.  Considering,  then,  th«- 
character  and  circumstances  of  the  parties,  and  the  nature  of  the 
nv.-]i;i.--  ri>Mi]>l:iiinil  <>f,  arc  the  daiiKip's  riionimu-.  mitnip-mi-. 
excessive  ?  I  am  not  satisfied  that  they  are.  In  the  first  place, 
the  plaintiff  is  a  man  who  has  long  filled  a  resjxx'table  rank  in 
the  estimation  of  the  public  and  the  honors  of  his  country,  and 
•whose  connections  and  influence  extend  far  and  operate  largely 
upon  society.  The  defendant,  too,  claims  the  possession  of  learning, 
of  talents  and  of  influence  ;  was  once  very  extensively  engaged 
•in  the  study  and  the  practice  of  the  law ;  understands  well  the 
rights  of  others,  and  his  obligations  to  respect  them,  and  h 

*538 


634  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Ogden  v.  Gibbons. 

ample  ought,  therefore,  to  have  influence.  When,  then,  the  jury 
believe  that  an  outrage  has  been  committed  by  such  a  man  as  the 
defendant  upon  such  a  one  as  the  plaintiff,  it  is  their  duty  to 
both,  and  for  example's  sake,  sternly  to  frown  upon  and 
liberally  to  punish  it.  In  the  second  place,  the  defendant  was 
admitted  upon  the  argument,  and  is  well  known  to  possess  great 
wealth.  By  him,  therefore,  a  light  verdict  would  not  be  regarded. 
That  which  would  oppress  a  poor  man  he  would  not  feel.  In 
the  third  place,  the  trespass  is  one  of  peculiar  aggravation.  The 
publication  of  such  a  hand-bill  can  only  be  esteemed  an  effort  to 
use  the  corrupted  sentiment  of  the  public  on  the  subject  of  duel- 
ing, to  drag  the  plaintiff  to  reproach,  contempt  and  infamy ;  nay, 
more,  in  this  instance  it  was  approaching  the  residence  of  the 
plaintiff  to  disgrace  him  in  the  eyes  of  his  own  family ;  to  stab 
him  where  no  medicine  could  cure  the  wound.  This  circum- 
*stance  I  consider  most  highly  aggravating,  and  most  completely 
justifying  the  exemplary  damages  which  are  given.  There  is  a 
dignity,  a  sacredness  about  a  man's  home  which  enmity,  however 
irreconcilable,  a  thirst  for  revenge,  however  keen  and  however  ex- 
cusable, ought  never  to  be  permitted  to  approach.  Assail  an 
enemy  where  we  will,  reprobate,  expose  and  publish  him  as  we 
may,  still  that  place  where  his  sensibilities,  his  pride  and  his  joys, 
meet,  ought  to  be  secure ;  the  inmates  of  his  residence  should 
never  be  made  to  feel  our  hate  or  his  wounds.  Sitting,  then, 
where  I  do,  and  called  to  pass  a  judgment  upon  the  damages 
which  ought  to  be  given  in  a  case  like  this,  I  do  not  hesi- 
tate to  say  that  the  verdict  ought  to  stand.  It  is  not  only  cor- 
rect in  itself,  but  deeply  important  for  the  example  which  it  has 
set.  The  disposition  which  prevails  among  us  to  stanch  our 
wrongs,  real  and  imaginary,  with  the  blood  of  our  adversaries^ 
has  called  long  but  in  vain  for  something  sufficiently  powerful 
to  repress  and  control  it.  It  has  spurned  ridicule,  disregarded 
reproof,  and  mocked  at  religion.  Something,  however,  is  to  be 
hoped  from  verdicts  like  this,  if  they  carry  with  them  the  public 
approbation.  But,  if  when  a  man  who  is  challenged  has  the 
firmness  Jo  appeal  to  a  jury,  his  appeal  is  rendered  ineffectual  by 
the  court,  who  ought  so  to  administer  justice  as  to  repress  crimes 

*539 


2  SOUTH.]          FEBRUARY  TERM,  1819.  635 


Nicholls  a>l*.  State. 


and  control  the  passions,  that  hope,  too,  is  gone ;  and  who  can 
measure  the  result?     It  is  not  such  as  I  am  willing  to  promote. 
On  all  the  questions,  therefore,  I  think  the  defendant  wrong, 
and  that  the  rule  for  a  new  trial  should  be  discharged* 

KIRKPATRICK,  C.  J.,  declared  his  entire  concurrence  on  all 
the  points. 

ROSSELL,  J.,  concurred,  but  thought  the  damages  larger  than 
ought  to  have  been  given. 

Rule  discharged. 


WILLIAM  NICHOLLS  at  suit  of  THE  STATE,  (a) 

An  indictment  found  by  a  grand  jury  summoned  by  a  sheriff  without  pro- 
cess, will  be  quashed  on  motion.  Defendant  may  withdraw  the  plea  of  not 
guilty  in  order  to  make  the  motion  to  quash. 


At  the  term  of  May,  1818,  Scott,  on  behalf  of  the  defendant, 
moved  for  two  writs  of  certiorari,  to  be  directed  to  the  justices 
of  the  oyer  and  terminer  and  general  gaol  delivery  of  Somerset, 
to  send  up  two  indictments  against  the  defendant ;  one  for  the 
alleged  forgery  of  a  deed ;  the  other  for  the  alleged  forgery  of 
a  *reoeipt  for  the  consideration-money  mentioned  in  the  deed. 
The  writs  were  granted,  and  were  returned  to  November  term 
following.  By  the  returns  it  appears  that  the  indictments  were 
found  at  a  court  of  general  quarter  sessions  of  the  peace  holden 
at  Somerville,  in  and  for  the  county  of  Somerset,  on  the  7th  of 
January,  1817,  and  .were  presented  by  certain  persons  therein 
named, ."  good  and  lawful*  men  of  said  county  sworn  and  charged 
to  inquire  for  the  state  and  for  the  body  of  said  county  "  &c. 

(a)  Cited  in  Slate  v.  Rickey,  4  Hal.S99;  Stale  v.  Hageman,  IQr.SSS;  Ber- 
rian  v.  The  State,  2  Zab.  89 ;  Stale  v.  Norton,  S  Zab.  47;  Chme  ads.  The 
State,  Spen.  £.W ;  Slate  v.  Blaiieelt,  9  Vr.  S06. 

*540 


636  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Nicholls  ads.  State. 


At  a  court  of  oyer  and  terminer  and  general  gaol  delivery 
li  olden  at  Somerville,  in  and  for  the  county  of  Somerset,  in 
October,  1817,  the  defendant  was  brought  in,  and  being  charged 
upon  the  indictments,  pleaded  thereto  not  guilty.  He  was  from 
time  to  time  bound  in  recognizance  with  sureties  to  appear  and 
traverse  &c.,  and  at  the  term  of  October,  1818,  for  want  of  bail, 
was  committed  to  close  confinement  in  the  county  gaol. 

In  the  term  of  November,  1818,  at  bar,  the  counsel  of  the 
defendant  prayed  for  and  obtained  another  writ  of  certiorari, 
directed  to  the  justices  and  clerk  of  the  general  quarter  sessions 
of  Somerset,  commanding  them  "  that  having  searched  and  in- 
spected the  files  and  records  of  said  court,  they  certify  and  send 
under  their  seals  &c.,  whether  any  writ,  precept,  or  other  process 
was  issued  or  given  to  the  sheriff  of  said  county,  or  was  returned 
by  him,  commanding  or  authorizing  him  to  summon  and  impanel 
any  grand  jury  of  or  in  the  said  term  of  January  ;  and  if  any 
such  writ,  precept,  or  other  process  there  be,  to  send  the  same  or 
a  true  copy  thereof"  &c.  To  this  writ  the  justices  and  clerk 
answered  that  they  had  searched  and  inspected  the  files  and 
records  and  that  no  writ,  precept,  or  other  process  was  issued  or 
given  to  the  said  sheriff  commanding  or  authorizing  him  to 
summon  or  impanel  any  grand  jury  at  said  term  ;  that  no  such 
writ  or  process  was  returned  by  the  sheriff  in  that  term,  nor  is 
any  now  on  file  there. 

Upon  this  return  being  made  it  was  moved  to  quash  the  in- 
dictments— 1.  Because  they  were  not  presented  by  a  grand  jury, 
summoned  by  the  sheriff,  by  lawful  authority.  And  2.  Because 
the  court  where  they  were  presented  appeared  to  have  been 
h  olden  at  Somerville,  and  not  at  Bridge  water,  in  the  county  of 
Somerset ;  which  was  contrary  to  the  statute. 

Attorney- General  moved  to  postpone  the  argument  of  the 
motion — 1.  Because  he  had  received  no  notice  of  it.  2.  Because 
*it  was  of  the  nature  of  a  demurrer  to  the  indictment,  which 
ought  not  to  be  filed  or  argued  after  the  plea  of  not  guilty. 

Scott.     Notice  of  more  than  a  month  has  been  given  to  the 

*541 


2  SOUTH.]  FEBRUARY  TERM,  1819.  637 


NicholU  ails.  State. 


deputy,  who  prosecutes  in  Somerset ;  and  this  is  a  case  where  the 
defendant  is  in  close  confinement,  and,  therefore,  the  court  will 
not  delay,  but  hear  the  motion  even  if  notice  of  the  argument 
were  deficient. 

By  THE  COURT.  Demurrers  for  the  insufficiency  of  indict- 
ments are  now  seldom  filed.  The  court  will  never  compel  the 
defendant  to  file  one.  Motion  to  quash  is  a  more  easy  and 
equally  effectual  mode  of  getting  at  the  whole  matter.  Every- 
thing may  be  heard  upon  it.  And  in  order  to  hear  a  motion  to 
quash,  the  court  will  always  permit  the  plea  of  not  guilty  to  be 
withdrawn. 

SOUTHARD,  J. 

I  do  not  think  the  motion  ought  to  be  postponed,  as  the  de- 
fendant is  in  prison.  Nor  do  I  perceive,  either,  how  we  can 
hear  while  the  plea  of  not  guilty  is  on  the  record ;  nor  how  that 
plea  can  be  withdrawn  unless  the  defendant  is  brought  .up  and 
appear  personally  in  court. 

Scott  proposed,  on  behalf  of  the  defendant,  to  withdraw  the 
plea. 

BY  THE  COURT.  If  we  permit  this  to  be  done,  and  the 
motion  is  decided  against  him,  he  is  not  here  to  plead  again. 
But  he  may  be  brought  up  for  that  purpose.  Under  the  circum- 
stances, however,  if  it  is  desired,  we  will  hear  the  argument,  and 
take  such  course  afterwards  as  the  case  may  require. 

Wood,  for  defendant,  read  the  writs  of  certiorari  and  the 
returns,  and  then  argued — 1.  That  no  precept  for  a  grand  jury 
had  been  directed  and  delivered  to  the  sheriff,  which  was  neces- 
sary to  authorize  him  to  act.  Pat.  130  ;  Burn  Just.  665.  That 
this  process  was  no  more  to  be  dispensed  with  than  any  other 
writ ;  that  writs  for  the  tales  de  dr.  were  formerly  necessary,  and 
that  the  legislature  were  obliged  to  interfere  and  alter  it  before 
they  could  be  taken  without  the  writs.  2.  That  the  court  at 


638  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Nicholls  ads.  State. 


which  the  indictments  were  found  did  not  appear  to  be  held  at 
the  proper  place,  which,  by  the  statute,  was  Bridgewater;  that 
this  court  could  look  only  to  the  record,  and  could  not  officially 
and  judicially  take  notice  that  they  were  the  same  place;  that 
this  fact,  *upon  the  face  of  the  record,  was  fatal.  2  Burn  Just. 
665;  2  Ld.  Raym.  1379. 

Scott,  on  the  same  point,  read  Pat.  31$  ;  2  Dyer  125, 126  ;  8 
Hawk.  362. 

Attorney- General.  The  return  is  incorrect.  The  original  in- 
dictment ought  to  be  sent  up.  The  return  ought  to  answer  the 
command  of  the  writ  (2  Hawk.  460)>  an(i  °n  the  original  indict- 
ment the  difference  as  to  the  place  of  holding  the  court  would 
not  appear.  It  has  merely  crept  in  in  preparing  the  caption  and 
making  out  the  rules  taken  at  the  several  terms. 

KlEKPATEICK,  C.  J. 

The  record  is  never  sent  with  the  writ,  but  the  tenor  only. 
We  send  a  transcript,  and  that  is  regarded  as  the  record.  The 
rules  taken  at  the  different  terms,  and  which  form  a  part  of  this 
return,  are  only  the  materials  for  making  up  the  record,  (a) 

Attorney- General.  Will  not  the  court  permit  the  record  to  be 
sent  back  to  correct  the  error  in  the  word  Somerville,  the  place  of 
holding  the  court  ? 

Scott.  For  defect  of  return  there  may  be  amendment,  but  not 
to  correct  the  original  entry  or  record. 

KlRKPATRICK,  C.  J. 

The  inferior  courts  have  for  many  years  been  negligent  ha 

(a)  Cited  in  Morris  Canal  ads.  Slate,  2  Or.  430 ;  Browning  v.  Cooper,  S  Harr. 
196  ;  see,  also,  Slate  v.  Hunt,  1  Hal.  SOS;  North  Brunswick  v.  Franklin,  1  Harr. 
5S5;  Mann  v.  Drost,  3  Harr.  336;  Morrel  v.  Fearing,  Spen.  670  ;  State  v.  Mor- 
ton, 3  Zab.  47;  Overseers  of  Mendham  v.  Morris,  post  810 ;  Alden  v.  Newark,  11 
Vr.  94. 

*542 


2  SOUTH.]          FEBRUARY  TERM,  1819.  639 


Nicholls  ads.  State. 


making  up  their  records.  There  have  been  no  captions  made, 
and  there  is  probably  none  upon  the  files  by  which  this  amend- 
ment could  be  made.  Yet  the  error  seems  of  such  a  kind  that 
the  clerk  ought  to  be  permitted  to  correct  it,  agreeably  to  the  fact. 

Scott.  No  suggestion  is  made  that  there  is  anything  to  amend 
by.  There  are  no  materials  out  of  which  the  record  could  be 
made  right,  if  it  is  erroneous. 

BY  THE  COURT.  Let  the  argument  proceed  upon  the  other 
point. 

Attorney- General.  1.  It  is  not  now  a  proper  inquiry  whether 
the  writ  issued  to  the  sheriff.  It  is  too  late,  after  the  pleadings 
and  proceedings  which  have  been  had,  to  except  to  the  authority 
of  the  grand  jury.  2.  If  true,  the  exception  has  nothing  to  do 
with  the  authority  of  the  court  to  try  the  indictment.  Its 
authority  comes  not  from  the  formal  proceedings,  but  from  the 
statute.  Pat.  130.  After  presentment  the  authority  cannot  be 
inquired  *into  in  this  way.  The  court  had  the  authority  to 
inquire ;  it  has  certified  that  the  proceedings  were  correct ;  its 
decision  is  not  now  to  be  investigated.  The  writ  itself  is  only 
issued  for  the  convenience  of  the  court  and  expedition  of  justice  ; 
it  is  of  no  importance  to  the  prisoner.  3.  The  want  of  process 
is  not  fatal.  There  is  nothing  imperative  in  the  act ;  it  is  only 
permissive.  And  our  practice  for  twenty  years  has  been,  not  to 
issue  these  writs  in  the  sessions.  The  juries  have  been  returned 
without  them.  This  has  become  our  common  law,  and  the  court 
will  not  lightly  disturb  it. 

Soott.  The  consent  of  defendant  to  plead  gives  no  jurisdiction. 
2  Hale  224-.  Pleas  of  the  general  issue  conclude  nothing ;  and 
nothing  will  be  intended  to  favor  conviction.  A  voluntary 
grand  jury  cannot  present.  The  court  cannot  select  the  grand 
jury.  Proclamation  is  always  made  to  return  the  writ ;  this 
precept  is  returned,  and  the  court  then  proceeds.  The  jury 
must  be  returned,  and  return  ex  vi  termini  is  an  answer  to  the 
writ. 

*543 


640  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Nicholls  ads.  State. 


BY  THE  COURT.  A  defendant  can  only  be  put  to  answer  an 
indictment  legally  found  and  presented.  A  grand  jury  has  no- 
authority  to  inquire  and  present,  unless  legally  impaneled.  The 
sheriif  is  merely  an  executive  officer ;  he  executes  the  writs  that 
are  directed  to  him.  They  are  his  authority  to  act,  and  his 
guide  and  direction  how  to  act.  Without  them  he  has  no  power. 
His  authority  to  summon  a  grand  jury  arises  only  from  the 
command  of  the  precept.  A  jury  summoned  without  it,  is  sum- 
moned altogether  without  legal  right.  Such  a  body  is  not  a 
grand  jury.  It  has  no  right  to  present,  nor  are  its  presentments 
sufficient  to  put  the  defendant  on  trial.  These  indictments, 
therefore,  being  presented  without  proper  authority,  must  be 
quashed. 

It  was  subsequently  moved  by  R.  Stockton,  for  the  attorney- 
general,  that  the  defendant  be  continued  in  custody  until  regular 
indictments  could  be  found  against  him. 

Scott.  It  is  more  than  two  years  since  these  indictments  were 
found ;  he  cannot,  therefore,  be  punished,  and  ought  not  to  be 
held. 

Stockton.  That  question  is  not  here  to  be  settled.  He  may  not 
be  permitted  to  take  advantage  of  the  limitation. 

SOUTHARD,  J. 

This  court  here,  and  on  this  argument,  ought  not  to  order  him 
to  be  either  discharged  or  held.  He  is  now  in  *confinement  on 
a  criminal  charge ;  when  he  applies  for  his  discharge,  to  the 
proper  tribunal,  it  will  determine  this  matter. 

THE  COURT  then  directed  a  rule  that  he  be  held  to  bail  for 
his  appearance  before  the  next  court  of  oyer  and  terminer  and 
general  gaol  delivery  of  the  county  of  Somerset,  in  such  sum  as 
the  chief-justice  should  order  and  direct,  on  the  return  of  a  habeas 
corpus  before  him,  at  his  house  in  New  Brunswick. 

*544 


2  SOUTH.]  FEBRUARY  TERM,  1819.  641 


Abraras  v.  Flatt. 


ABRAMS  at  the  suit  of  FLATT  and  others,  (a) 

An  action  of  trespass  had  been  prosecuted  by  the  plaintiff* 
against  Abraras  and  Rolfe.  The  cause  was  tried  at  the  Septem- 
ber circuit  in  1818,  in  Essex  county.  A  verdict  was  rendered 
and  damages  given  against  Rolfe,  but  verdict  in  favor  of  Abrams, 
and  no  certificate  made  by  the  court  that  there  was  reasonable 
cause  for  making  him  a  defendant  in  the  action.  Pat.  150. 
Whereupon  it  was  moved  by  Scott,  and  ordered  that  a  rule  be 
entered  in  his  favor  for  his  costs  ot  suit. 


SYLVESTER  JUDSON  v.  SAMUEL  STORER,  son  and  heir-at-law 
of  David  Storer,  deceased.  (6) 

In  case. 

It  appearing  that  the  writ  had  been  duly  served  on  defendant, 
and  it  further  appearing,  by  affidavit,  that  he.is  an  infant  under 
the  age  of  twenty-one  years,  it  was  ordered  on  motion  for  Deare 
that  the  said  infant  do  appear  by  the  first  day  of  the  next  term, 
or  that  the  plaintiff  may  have  liberty  to  assign  a  guardian  and 
enter  an  appearance  for  him  and  proceed  in  the  action.  And  it 
was  further  ordered  that  a  copy  of  the  rule  be  delivered  to  the 
infant  and  also  to  the  person  in  whose  house  and  under  whose 
care  he  was  living. 

(a)  Cited  in  Gibbons  v.  Ogden,  1  Hal.  S98. 

(6)  See  Smilk  v.  Minor,  'Ooxt  416;  Sleelman  v.  Got,  Penn.  *644  ;  Fmdlces  v. 
Young,  1  Zab.  4S8  ;  Dacotta  v.  Daw,  4  Zab.  319. 

41 


642  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

State  v.  Raborg. 


*THE  STATE  v.  WILLIAM  RABORG.  (a) 

A  writ  of  habeas  corpus  was  issued,  directed  to  the  defendant, 
to  bring -up  the  bodies  of  Walter  Wilson  and  others,  persons  of 
color.  The  sheriff  of  Somerset  sent  up  a  copy  of  the  writ  with 
a  certificate  of  service  endorsed  upon  it.  The  defendant  did  not 
appear  nor  return  the  writ,  and  it  was  suggested  that  he  intended 
to  depart  the  state,  taking  with  him  the  persons  named  in  said 
writ.  It  was  therefore  moved  that  an  attachment  issue,  but  it 
was  refused  because  the  return  and  evidence  were  not  sufficient. 

At  a  subsequent  day,  the  affidavit  of  William  Hoagland  was 
read,  proving  the  service  of  the  habeas  corpus ;  and  it  appear- 
ing that  the  said  writ  had  not  been  returned  by  said  Raborg,  it 
was  on  motion  ordered  that  an  attachment  do  forthwith  issue 
against  him  for  contempt  of  the  court  in  disobeying  the  said 
writ  of  habeas  corpus. 

(a)  See  State  v.  TrumbuU,  1  South.  139. 

*545 


"CASES  DETERMINED 


IN   THE 


SUPREME  COURT  OF  JUDICATURE 


OF   THE 


STATE  OF   NEW  JERSEY 

MAY  TERM,  1819. 


HENRY  MILLER,  Jr.  v.  ELIZABETH  BARNET. 

Under  the  statute  (Pal.  336),  the  township  committee  have  no  authority 
where  there  is  a  partition  fence ;  they  cannot  direct  its  position  to  be  changed,  (a) 


On  demurrer. 

In  November,  1816,  Miller  commenced  an  action  of  trespass 
against  the  defendant.  The  declaration  is  in  the  usual  form. 
The  first  count  complains  that  the  defendant,  on  the  15th  of 
November,  1815,  and  on  divers  days  &c.,  with  force  and  arms, 
broke  and  entered  a  certain  close  of  the  said  Henry,  situate  in 
the  township  of  Tewksbury,  in  the  county  of  Hunterdon,  and 
then  and  there  trampled  down  <fec.  the  grass  and  corn  of  the 
plaintiff  &c.,  and  with  cattle  <fec.  trampled  down  grass  and  corn 
<fec.  The  second  count  charges  that  with  hoes  &c.  she  dug  &c. 
and  planted  &c.  three  hundred  yards  of  fence  over  and  through 
the  grass  and  corn  of  the  plaintiff  &c.,  and  with  feet  and  cattle 
<&c.  Third  count  charges  the  same  as  the  first,  done  by  her 
agents  and  servants.  Fourth  count  same  as  second,  but  done  by 
her  agents  and  servants. 

(a)  Carlis  v.  Little,  1  Or.  S29 ;  see  Chambers  v.  Matthcvx,  S  Harr.  368. 

*547  643 


644  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Miller  v.  Barnet. 


First  plea  was  not  guilty,  and  issue.  Second  plea,  llberum 
tenementum,  and  issue. 

The  third  plea  in  substance  is  as  follows :  That  the  plaintiff 
*ought  not  to  have  or  maintain  his  action,  because  the  lands  of 
the  said  Barnet  and  Miller  joined  each  other  in  the  said  town- 
ship of  Tewksbury,  and  the  said  Barnet  proposing  to  make  the 
division  or  partition  fence  between  them,  and  they  not  being  able 
to  agree  upon  the  place  where  the  same  ought  to  be  placed  and 
made,  the  said  Barnet  thereupon  and  before  the  time  when  &c.  to- 
wit,  on  the  23d  of  October,  1815,  at  said  township,  according  to 
the  form  of  the  statute  in  such  case  made  and  provided,  did 
apply  to  Andrew  Bartles  and  Aaron  Longstreet,  two  of  the 
township  committee  of  said  township,  residing  nearest  the  prem- 
ises, and  being  disinterested  and  indifferent  between  the  said  Bar- 
net  and  Miller  ;  and  the  said  Bartles  and  Longstreet  having  met 
together  pursuant  to  said  application,  after  hearing  the  allegations 
and  proofs  of  the  said  parties  according  to  the  form  of  the  statute 
&c.,  by  writing  under  their  hands,  bearing  date  the  23d  of  Oc- 
tober, 1815,  and  delivered  to  each  of  the  parties,  did  therein  and 
thereby  fix  and  appoint  the  place  where  the  said  division  or  par- 
tition fence  should  or  ought  to  be  made ,  as  follows,  viz. :  Begin- 
ning &c.  (pointing  out  the  courses  and  distances),  and  did  therein 
and  thereby  order  and  appoint  the  said  Barnet  to  make  and  main- 
tain seven  chains  eighty-seven  links  of  the  upper  end  of  it,  and 
Miller  the  same  quantity  at  the  lower  end  ;  that  Miller  having 
neglected  to  make  his  just  part  or  proportion  of  said  fence,  Bar- 
net  at  the  said  several  times  when  &c.  entered  into  the  close 
&c.  to  make  the  said  partition  fence  in  the  place  so  appointed  by 
Bartles  and  Longstreet,  and  did  make  it  conformably  to  said  ap- 
pointment and  pursuant  to  the  statute,  and  did  dig  and  open  the 
ground  and  put  that  fence  and  no  other,  and  in  so  doing  did  no 
unnecessary  damage  &c.,  which  are  the  same  trespasses  &c.,  and 
concludes  with  a  verification  &c. 

To  this  third  plea  Miller  replied  that  he  ought  not  to  be  barred 
&c.,  because  the  close  mentioned,  on  the  2d  of  October,  1815,  was 
the  close  and  freehold  of  Henry  Miller,  Sr.,  and  before  the  day  &c. 
viz.,  on  the  15th  of  April,  1815,  he  demised  it  to  the  plaintiff 

*548 


2  SOUTH.]  MAY  TERM,  1819.  645 


Miller  v.  Barnet. 


for  one  year,  and  from  year  to  year  so  long  as  they  should  please, 
by  virtue  of  which  demise  he  entered  and  was  possessed  thereof; 
and  further,  that  on  the  2d  of  October,  1815,  and  for  a  long  time 
before,  there  was  and  had  been  a  partition  fence  between  said 
close  and  the  adjoining  land  of  said  Barnet,  in  the  plea  men- 
tioned, and  that  the  place  so  fixed  and  appointed  by  *the  said 
Bartles  and  Longstreet,  where  the  said  division  or  partition  fence 
should  be  made  is  not  the  same  place  where  the  said  fence  was 
and  had  been,  but  another  and  different  place ;  concluding  with 
verification  &e. 

To  this  replication  the  defendant  filed  a  demurrer  and  the 
plaintiff  joined  in  demurrer. 

Wall,  in  support  of  the  demurrer,  referred  to  Pat.  386  §  8, 
And  argued — 1 .  That  the  replication  was  no  answer  to  the  plea  ; 
that  the  object  of  the  statute  was  to  create  a  tribunal  with 
authority  to  determine  where  division  fences  should  be  when  the 
•owners  of  the  land  could  not.  2.  That  the  replication  was 
faulty,  for  duplicity;  setting  up,  first,  the  freehold  in  Henry 
Miller,  Sr.,  and  second,  that  there  was  an  ancient  fence  in  the 
place. 

Euring,  in  answer,  maintained  that  the  township  committee  had 
not  authority  to  interfere  where  there  was  a  fence,  but  only  where 
no  partition  fence  had  ever  been  made.  That  the  power  given 
was  to  place,  not  to  remove  the  fence.  That  the  plaintiff  here 
was  merely  a  tenant,  and  that  the  notice  must  be  given  to  the 
real  owner.  Ooxe  53.  That  the  replication  was  not  double, 
but  if  it  were,  the  demurrer  must  be  special,  and  the  replication 
•was  amendable. 

Wall  replied  that  the  township  committee  only  fix  the  fence 
but  do  not  settle  any  right  to  the  land ;  that  if  they  act  incor- 
rectly the  party  has  two  remedies,  one  by  certiorari  to  remove 
their  proceedings,  the  other  ejectment ;  but  that  advantage  could 
not  be  taken  of  it  in  this  collateral  way. 

*549 


646  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Miller  v.  Barnet. 


KIRKPATRICK,  C.  J.,  expressed  his  view  of  the  case  as  fol- 
lows :  This  is  an  action  of  trespass  for  breaking  and  entering 
the  plaintiff's  close  and  treading  down  the  grass  and  grain  there 
growing  &c. 

The  defendant  pleads  several  pleas,  and  in  the  third,  which  i& 
the  one  now  under  consideration,  she  says  that  she  and  the  plain- 
tiff are  possessed  of  certain  tracts  of  land  adjoining  one  another 
in  the  township  of  Tewksbury ;  that  a  difficulty  had  arisen  be- 
tween them  touching  the  placing  of  the  partition  fence  between 
the  said  tracts ;  that  she  had  applied  to  two  of  the  township 
committee  thereupon,  who  had  fixed  the  line  where  the  same 
should  be  made,  and  designated  the  particular  part  *thereof 
which  each  of  them  should  make ;  that  the  plaintiff,  notwith- 
standing, had  neglected  and  refused  to  make  his  part  thereof; 
and  that,  therefore,  she  entered  into  and  upon  the  said  close,  in 
which  &c.,  to  make  the  same,  as  by  the  provisions  of  the  statute 
in  that  case  made  and  provided  it  was  lawful  for  her  to  do,, 
treading  down  as  little  of  the  grass  and  corn  there  growing,  and 
doing  as  little  damage  as  was  possible ;  and  that  this  was  the 
only  breaking  and  entering  of  which  the  plaintiff  complains. 

To  this  plea  the  plaintiff  replies  that  at  the  time  when  &c.,  and 
long  before,  there  was  and  had  been  a  partition  fence  between  the 
said  tracts  which  designated  and  bounded  the  possession  of  the 
parties  respectively ;  and  that  the  line  so  as  aforesaid  fixed  by 
the  said  township  committeemen  was  not  in  the  same  place 
where  the  said  fence  stood,  but  in  another  and  different  place. 
And  to  this  replication  there  is  a  demurrer  and  a  joinder  in  de- 
murrer. 

The  only  question  raised  at  the  bar  on  those  pleadings  is 
whether  where  there  is  a  subsisting  fence,  designating  the  pos- 
session of  the  parties,  the  township  committeemen  have  authority,, 
under  the  statute,  to  fix  a  place  or  line  for  the  partition  fence 
different  from  that  where  such  subsisting  fence  stands. 

The  statute  speaks  of  cases  where  difficulty  may  arise  touch- 
ing the  placing  of  a  particular  fence.  Now,  this  phraseology  is 
not,  strictly  speaking,  applicable  to  a  case  where  the  partition 
fence  is  already  placed.  No  difficulty  can  arise  about  doing  that 

*550 


2  SOUTH.]  MAY  TERM,  1819.  647 

Sayre  v.  Blancbard. 

which  is  already  done.  If  the  statute  had  contemplated  such  a 
case  as  this  it  would  have  spoken,  not  of  placing,  but  of  altering, 
changing,  straightening  or  placing  upon  Hie  true  line  such  fence. 
Besides,  the  reason  of  the  thing  is  against  the  authority.  A 
citizen,  upon  general  principles,  is  not  to  be  dispossessed  of  his 
freehold  by  the  opinion  of  two  township  committeeraen,  nor  by 
the  opinion  of  any  other  men,  unless  it  be  a  lawful  jury  of  the 
county.  This  principle,  too,  has  been  already  settled  in  the  case 
of  The  State  v.  Ford  and  Baldwin,  Coxe  53.  There,  because 
the  surveyors  altered  the  line  where  the  fence  stood,  and  which 
had  been  acquiesced  in  for  a  long  time,  the  court  say  that  under 
the  pretence  of  settling  a  line  fence  they  -had  undertaken  to  try  a 
title  to  lands;  and,  therefore,  quashed  their  order.  Therefore, 
upon  principle,  as  well  as  upon  precedent,  I  think  the  demurrer 
must  be  overruled. 

"KlRKPATRICK,  C.  J.,  and  ROSSELL,  J. 

The  judgment  of  the  court  goes  upon  the  ground  that  the 
township  committee,  under  the  statute,  have  no  authority  to  in- 
terfere in  cases  where  a  partition  fence  has  already  been  made, 
and  direct  it  to  be  placed  elsewhere. 

SOUTHARD,  J.,  expressed  no  opinion,  having  formerly  been 
of  counsel  with  the  plaintiff. 

Demurrer  overruled. 


JOHN  C.  SAYRE  v.  ABIGAIL  BLANCHARD. 

Rule  on  justice  must  be  taken  at  the  term  to  which  writ  is  returned  or  the 
transcript  perfected,  (a) 

On  certiorari. 

This  certiorari  was  returned  to  the  last  term,  and  now  attor- 
ney-general applied  for  a  rule  on  the  justice  to  certify  whether  a 

(a)  Thorp  v.  Row,  post  720. 

*551 


648  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Den  v.  Kinney. 

charge  of  interest  in  the  plaintiff's  account  was  made  before  the 
account  was  filed,  or  at  the  time  of  entering  up  judgment,  or  at 
what  time. 

Watt  objected  that  the  rule  ought  to  have  been  applied  for  at 
the  last  term,  to  which  the  writ  was  returned. 

Attorney- General.  The  certiorari  was  brought  because  there 
was  no  evidence,  and  the  judgment  was  in  the  absence  of  the 
defendant ;  but  on  a  corner  of  the  state  of  demand  it  is  noted 
that  the  defendant  admitted  the  plaintiff's  account.  This  ren- 
dered it  necessary  to  apply  for  this  rule. 

BY  THE  COURT.  It  is  too  late;  the  rule  cannot  now  be 
granted, 

It  then  appeared  that  at  the  last  term,  upon  the  return  of  the 
writ,  Wall,  for  defendant  in  certiorari,  had  obtained  a  rule  on 
the  justice  to  amend  and  perfect  his  record  as  to  the  admission 
of  the  defendant  below,  which  he  had  done  to  the  present  term. 

BY  THE  COURT.  If  that  be  so,  the  present  application  is  in 
time.  A  rule  like  this  need  not  be  applied  for  until  the  return 
is  perfected. 

Rule  granted. 


*DEN  v.  JACOB  A.  KINNEY. 

Rule  to  stay  waste  not  granted  where  the  cutting  of  the  wood  &c.  is  for  the 
ordinary  use  of  the  premises ;  as  cutting  wood  for  a  furnace,  (a) 

(a)  See  Harker  v.  Christy,  post  717;  Oapner  v.  Flemington  Mining  Co.,  2 
Gr.  Ch.  467 ;  Brick  v.  Oetsinger,  1  Hal.  Ch.  391;  Vervalen  v.  Older,  4  Hal. 
Ch.  9S;  Van  Syckel  v.  Emery,  8  O.  E.  Or.  387  •  Emmons  v.  Hinderer,  9  G.  E. 
Or.  39  ;  Morehouse  v.  Cotheal,  2  Zab.  521. 

*552 


2  SOUTH.]  MAY  TEEM,  1819.  649 


Den  r.  K  in iit- y. 


Chetwood,  for  plaintiff,  presented  affidavits  by  which  it  ap- 
peared that  several  hundred  acres  of  woodland,  annexed  to  a 
furnace,  were  in  dispute  in  this  action ;  that  the  defendant  had 
cut  several  hundred  cords  of  wood  upon  it  for  the  use  of  the 
furnace ;  but  it  was  not  more  than  was  usually  cut  every  year 
for  that  purpose.  Whereupon,  he  moved  a  rule  to  stay  the  de- 
fendant from  committing  waste. 

Attorney- General  objected — 1.  That  the  plaintiff  had  not  set 
out  that  he  had  title  nor,  the  extent  of  it.  Br.  Ch.  57 ;  Harr. 
Ch.  .237,  839.  That  this  ought  to  be  done  otherwise  by  issuing 
a  declaration  in  ejectment,  and  applying  for  this  rule  the  tenant 
might  always  be  deprived  of  the  use  of  his  property.  2.  That 
it  appeared  by  the  affidavits  which  he  read  that  plaintiff  has 
covenanted  to  convey  the  premises  to  the  defendant,  and  has  put 
him  in  possession ;  and  that  the  defendant  is  only  in  the  ordi- 
nary enjoyment  and  use  of  the  land.  1  Ves.  278 ;  1  Mod.  114- 

Chetwood.  In  this  court,  title  need  not  be  set  out  in  order  to 
•obtain  this  rule.  And  defendant,  by  his  own  showing  upon  the 
affidavits,  cannot  dispute  the  legal  title  of  the  lessor.  The  lessor 
has  merely  covenanted  to  convey. 

KIRKPATRICK,  C.  J. 

In  chancery,  the  complainant  must  show  his  right,  if  he  would 
obtain  this  benefit.  It  is  not  so  at  common  law.  It  is  against 
the  mode  of  proceeding  here  to  spread  out  the  title  upon  such 
applications.  But  notwithstanding  this,  where  there  is  a  contest 
for  land,  we  will,  as  far  as  possible,  keep  the  property  from 
waste,  and  in  the  state  in  which  it  was  at  the  time  when  the  suit 
wmmenced.  But  then  every  cutting  is  not  to  be  considered 
waste.  The  use  of  the  wood  for  the  common  purposes  of  the 
estate  is  not  waste.  Here  the  land  is  annexed  to  a  furnace;  cut- 
ting wood  for  it  is  no  waste ;  it  is  using  the  land  in  the  ordinary 
mode.  The  court  will  not,  therefore,  interfere. 

BY  THE  COURT.     The  rule  refused. 


650  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Lanning  v.  Shute. 

*LANNING  v.  SHUTE.  (a) 
In  debt. 

Lanning  brought,  in  the  city  of  New  York,  an  action  against 
Shute  for  slander,  and  obtained  verdict  and  judgment.  He  then 
commenced  an  action  of  debt,  upon  the  judgment,  in  this  court. 
The  defendant,  Shute,  pleaded — 1.  Nul  tiel  record.  2.  Nil  debet. 
Annexed  to  this  second  plea,  was  a  notice  that  he  would  give  the 
truth  of  the  words  in  evidence,  and  also  certain  circumstances 
which  took  place  at  the  time  of  the  trial.  The  plaintiff'  demur- 
red, and  there  was  a  joinder  in  demurrer. 

Chetwood  moved  to  strike  out  this  notice  of  particulars  upon 
the  ground  that  a  part  of  the  matters  it  contained  would  have 
been  fit  for  a  motion  for  a  new  trial,  and  the  rest,  a  defence  in 
the  original  suit ;  but  the  judgment  in  New  York  was  conclusive 
of  the  matters  which  were  the  foundation  of  it. 

Scudder  answered.  If  the  plea  nil  debet  be  good,  the  court 
will  not  strike  out  the  notice,  and  the  validity  of  the  plea  must 
abide  the  decision  on  the  demurrer. 

KlRKPATRICK,  C.  J. 

The  plea  and  notice  are  one  thing,  and  you  must  take  both 
together.  You  cannot  nullify  the  plea  by  striking  off  the  notice. 

Chetwood  thought  it  necessary  to  get  rid  of  the  bill  of  partic- 
ulars before  he  could  get  to  the  demurrer. 

SOUTHARD,  J. 

The  plea  and  notice  both  raise  the  same  question. 

BY  THE  COURT.  The  whole  must  be  considered  on  the  de- 
murrer. We  cannot  now  strike  off  the  notice. 

(a)  S.  C.,  post  778. 

*553 


2  SOUTH.]  MAY  TERM,  1819.  651 


State  r.  Shinn. 


THE  STATE  v.  JAMES  SHINN 

After  insolvent  applies  for  discharge,  the  law  is  repealed,  and  he  is  after- 
wards discharged,  the  discharge  void,  (a) 

On  Geriiorcuri. 

This  writ  was  prosecuted  by  Joshua  G.  Harker,  and  was 
directed  to  the  common  pleas  of  Monmouth,  to  remove  the 
judgment,  order,  petition  and  proceedings  given  and  made,  upon 
the  application  of  the  defendant  for  the  benefit  of  the  insolvent 
laws  of  the  state.  By  the  return,  it  appears  that  he  presented 
his  petition  to  the  court  on  the  27th  of  January,  1818  ;  that  the 
proceedings  were  had  in  the  usual  manner,  and  that  the  final 
hearing  upon  the  application  took  place  on  the  12th  of  March, 
1818,  on  which  day  he  was  discharged  by  the  court.  In  the 
month  of  February,  after  the  application,  and  before  the  dis- 
charge, the  legislature  passed  a  law,  repealing  the  one  then  in 
force,  for  the  benefit  of  insolvent  debtors,  and  containing  no 
clause  saving  the  benefit  of  such  applicatioas  as  had  been  pre- 
viously made. 

The  reason  assigned  and  relied  on  for  setting  aside  the  order 
and  discharge  was  in  the  following  words :  "  Because  the  acts  of 
the  legislature,  under  which  the  application  of  the  said  James 
Shinn  was  made  to  the  said  court  in  the  term  of  January,  1818, 
were  afterwards,  and  before  the  12th  day  of  March,  1818,  when 
the  said  order  of  discharge  was  made,  repealed,  and  not  in  force 
on  the  day  last  aforesaid,  by  reason  whereof  the  said  order  was 
and  is  wholly  unauthorized,  illegal  and  void." 

Evring,  for  the  prosecution. 

THE  COURT,  after  argument,  did  order  and  adjudge  that  the 

(a)  See  Den,  Jnmf*  v.  D<tboi*,  1  Hear.  S86  ;  Hunt  v.  Ouliet,  4  Hal.  SOS. 

*554 


€52  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

State  v.  Burlington  Orphans  Court. 

order  of  the  said  court  of  common  pleas  of  the  county  of  Mon- 
mouth,  for  the  discharge  of  said  Shinn  from  confinement  as  an 
insolvent  debtor,  and  the  discharge  of  said  Shinn  to  be  set  aside. 


THE  STATE  v.  THE  JUDGES  OF  THE  ORPHANS  COURT  OF 
THE  COUNTY  OF  BURLINGTON. 

Division  of  estate  by  commissioners  under  order  of  orphans  court  set  aside, 
because  lands  not  of  the  estate  set  off  to  one  of  the  heirs,  (a) 


On  certiorari. 

At  the  term  of  November,  1818,  Wall  presented  two  affidavits, 
whereby  it  appeared  that  an  application  had  been  made  to  the 
orphans  court  of  Burlington  for  the  appointment  of  commis- 
sioners to  divide  the  real  estate  of  Isaac  Quigley,  deceased  ;  that 
they  made  a  division  and  report  on  the  llth  of  February,  1818; 
that  this  report  was  confirmed  in  the  same  month ;  that  the 
whole  of  the  land  set  oif  and  divided  to  Jemima  South,  one  of 
the  heirs  (who  was,  at  the  time  of  the  division,  and  still  con- 
tinued, an  inhabitant  of  the  state  of  Ohio),  and  part  set  off  to 
Rachel  Ro*berts  and  Jane  Rossell,  was  contained  in  a  deed  given 
by  said  Quigley,  on  the  21st  of  November,  1780,  to  Ebenezer 
Cowell,  and  that  Cowell  went  into  possession  of  it  at  the  date  of 
the  deed,  and  he  and  his  heirs  had  continued  in  possession  ever 
since. 

Upon  these  affidavits  a  certiorari  was  issued,  directing  the 
court  to  send  up  the  report  and  order.  Upon  the  return  of  the 
writ,  other  affidavits  were  taken,  which  proved  the  facts  before 
stated,  and  it  was  moved  to  set  aside  the  report  of  the  commis- 

(a)  See  Bellerjeau  v.  Real  Estate  of  George  Ely,  3  Hal.  273  ;  Stokes  v.  Mid- 
dleton,  4  Dutch.  32;  Young  v.  Raihbone,  1  C.  E.  Gr.  225 ;  Den,  Richman  v. 
Baldwin,  1  Zab.  395;  S.  C ,  1  Stock.  394;  Van  Riper  v.  Berdan,  2  Qr.  133;  N. 
J.  R.  R.  Co.  v.  Siiydam,  2  Harr.  62. 

*555 


2  SOUTH.]  MAY  TERM,  1819.  653 

State  r.  Brearly. 

sioners,  upon  the  ground  that  they  had  divided  lands  not 
belonging  to  the  estate  of  Isaac  Quigley,  and  had  not  given  any 
of  his  lands  to  one  of  his  heirs,  and  less  than  their  proportion  to 
two  others.  •  • 

Kinsey  objected.  That  the  certiorari  ought  to  have  been 
brought  within  three  months ;  that  the  objection  to  the  report 
ought  to  have  been  made  within  three  months ;  that  the  adverse 
d;ii in  of  Cowell  could  not  be  tried  here,  and  must  be  tried  before 
a  decision  can  be  made  in  favor  of  Mrs.  South ;  and  that  chancery 
had  the  jurisdiction  over  this  matter. 

Wall  replied  that  Mrs.  South  lived  out  of  the  state ;  that  the 
writ  was  applied  for  as  soon  as  could  be  done  from  her  situation  ; 
that  the  division  was  made  in  February,  the  affidavit  in  August, 
and  the  motion  in  November ;  that  the  certiorari  must  necessa- 
rily be  issued  in  three  months  only  in  adversary  suits,  not  in 
ex  parte  hearings ;  that  this  was  the  only  mode  of  reaching  the 
evil ;  that  the  application  here  was  to  the  general  superintending 
power  of  the  court,  which  was  sufficient  for  the  purpose. 

The  court  ordered  that  the  division  and  report  of  the  commis- 
sioners, and  the  order  of  the  orphans  court,  be  reversed  and  made 
void. 


STATE  v.  DAVID  BREARLY,  Esq.,  Colonel,  and  HENRY  BER- 
RYMAN,  Esq.,  Lieutenant,  in  the  army  of  the  United  States,  (a) 

On  habeas  corpus. 

On  the  23d  of  April,  1819,  Samuel  Anderson,  as  the  next 
friend  of  Isha  Davidson,  presented  to  Justice  Southard  a  petition 
setting  forth,  in  substance,  that  the  said  Davidson  was  in  the 

(a)  Bruen  v.  Ogden,  6  Hal.  S8S  ;  Stale  v.  Zulich,  5  Dutch.  409;  In  waiter 
of  Troutman,  4  Zab.  634. 


654  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

State  v.  Brearly. 

custody  of  the  defendants,  under  a  pretence  of  having  enlist*ed 
him  as  a  soldier  in  the  armies  of  the  United  States  on  the  8th  of 
January,  1819 ;  that  he  was  eighteen  years  old  on  the  3d  of 
April,  1819;  that  Re  was  born  of  poor  parents,  and  had  been 
bound  out  to  said  Anderson  as  an  apprentice  by  B.  Hendrickson, 
overseer  of  the  poor  of  the  township  of  Trenton,  by  and  with 
the  advice  and  consent  of  W.  Potts  and  R.  M'Neely,  esquires, 
two  of  the  justices  of  the  peace,  according  to  the  law  of  New 
Jersey,  by  indenture  dated  the  9th  of  September,  1811 ;  that  no 
consent  to  the  enlistment  was  ever  obtained  from  the  overseer  or 
justices,  or  any  of  them,  either  before,  at  or  after  the  enlistment; 
that  the  consent  of  no  one,  save  that  of  Davidson's,  into  which 
he  was  inveigled,  was  obtained  previous  to  the  enlistment.  To 
this  petition  was  annexed  an  affidavit  of  said  Anderson  "  that 
the  facts  stated  in  the  petition,  according  to  the  best  of  his  knowl- 
edge and  belief,  are  true." 

Upon  this  petition  and  affidavit  Justice  Southard  granted  a 
writ  of  habeas  corpus,  directed  to  the  defendants.  To  this  writ 
Colonel  Brearly  returned,  in  substance,  that  the  said  Davidson, 
on  the  8th  of  January,  1819,  voluntarily  enlisted  as  a  soldier  in 
the  army  of  the  United  States  for  the  period  of  five  years,  unless 
sooner  discharged  by  proper  authority,  at  the  same  time  repre- 
senting himself  to  be  aged  twenty-one  years  ;  that  afterwards,  on 
the  20th  of  February,  1819,  the  said  Anderson,  pretending  to  be 
his  master,  consented  to  the  said  enlistment  by  writing  under  his 
hand,  testifying  his  free  will  and  consent  that  said  Davidson,  his 
indented  apprentice,  to  enlist  in  the  service  of  the  United  States, 
and  that  by  virtue  of  such  enlistment  he  was  held  &c.,  nevertheless 
the  body  of  the  said  Davidson  he  had  ready  as  commanded  &c. 

Annexed  to  the  return  was  the  original  enlistment,  in  the  usual 
form,  and  bearing  date  on  the  day  stated  ;  on  the  back  of  it  was 
endorsed:  " Trenton,  N.  J.,  20th  February,  1819.  I,  Samuel 
Anderson,  of  Nottingham,  Burlington  county,  N.  J.,  do  hereby 
give  my  free  will  and  consent  for  Isha  Davidson,  an  apprentice 
to  me,  to  enlist  into  the  service  of  the  United  States.  Signed, 
Samuel  Anderson.  [Seal.]  Signed  and  sealed  in  the  presence  of 
Robert  Lyman,  William  Cherry." 

*556 


2  SOUTH.]  MAY  TERM,  1819.  655 

State  v.  Brearly. 

After  that  return  Anderson  filed  a  reply  protesting  that  the 
enlistment  was  void,  and  stating  that  he  had  forewarned  the  re- 
cruiting sergeant  not  to  enlist  Davidson,  as  he  was  a  minor  and 
his  *apprentice,  and  that  afterwards  he  had  been  discharged, 
both  by  the  military  officers  and  by  an  order  or  decree  of  the 
•district  court  of  the  city  and  county  of  Philadelphia. 

On  the  3d  of  May  the  petitioner  appeared,  and  the  defendants 
produced  the  prisoner.  The  petitioner  offered  in  evidence  an  in- 
denture of  apprenticeship,  which  was  executed  in  due  form  of 
law,  and  was  such  as  was  stated  in  the  petition.  He  also  offered 
a  record,  certified  according  to  law,  from  the  district  court  of  the 
city  and  county  of  Philadelphia,  by  which  it  appeared  that  on 
the  18th  of  March,  1819,  before  said  court,  Anderson,  in  behalf  of 
Davidson,  presented  a  petition  setting  out  "  that  Davidson  was 
deprived  of  his  liberty  by  Lieutenant  Andrews,  commanding 
officer  of  Fort  Mifflin,  and  that  without  any  just  or  reasonable 
cause,"  and  praying  for  a  habeas  corpus,  and  he  made  oath  to 
the  truth  of  the  facts  stated  in  his  petition,  and  that  Davidson 
was  not  detained  for  any  criminal  or  supposed  criminal  matter, 
to  the  best  of  his  knowledge  and  belief;  whereupon  a  habeas 
corpus  was  ordered  and  issued,  returnable  immediately.  To  this 
writ  Lieutenant  Andrews  returned  that  Davidson  was  sent  to  that 
post  on  the  20th  of  February,  1819,  and  was  detained,  in  conse- 
quence of  being  an  enlisted  soldier  in  the  Seventh  regiment  United 
States  infantry.  The  record  adds,  "  and  now,  the  20th  day  of 
March,  A.  D.  one  thousand  eight  hundred  and  nineteen,  after 
hearing,  the  said  Isha  Davidson  is  discharged  from  his  enlist- 
ment." 

It  was,  at  the  same  time,  agreed  by  the  parties  that  Davidson's 
age  was  the  same  as  is  stated  in  the  indenture ;  that  in  the  month 
of  February  last  past,  and  before  the  enlistment,  the  recruiting 
sergeant  brought  him  to  a  surgeon  to  be  inspected,  as  a  person 
who  was  about  to  enlist ;  that  Anderson,  his  master,  followed  and 
claimed  him  as  his  servant ;  whereupon  the  surgeon  did  not  in- 
spect nor  certify,  but  he  was  immediately  dismissed ;  that  after 
the  enlistment,  viz.,  between  the  12th  and  20th  of  February, 
A  nderson  called  on  Lieutenant  Lyman,  who  commanded  the  re- 

*557 


656  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

State  v.  Brearly. 

cruiting  rendezvous,  and  again  claimed  him,  and  requested  his 
discharge ;  whereupon  Lieutenant  Lyman  did  discharge  him ; 
that  after  this,  viz.,  on  the  20th  of  February,  the  master,  Ander- 
son, voluntarily  returned  to  the  recruiting  rendezvous  with  David- 
son, delivered  him  to  Lieutenant  Lyman,  and  signed  his  consent, 
which  is  endorsed  on  the  back  of  the  enlistment.  After  this 
(the  time  *not  precisely  ascertained),  Davidson  left  the  recruiting 
rendezvous  and  was  found  in  his  master's  house.  Lieutenant 
Lyman  declared  to  his  master  that  he  would  take  him  as  a 
deserter,  and  sent  men  for  that  purpose;  but  he  also  declared 
that  if  Davidson  was  peaceably  delivered  up,  he  would  produce 
him,  provided  the  master  chose  to  contest  the  legality  of  the  en- 
listment and  holding ;  whereupon  he  was  delivered  to  Lieutenant 
Lyman  and  this  habeas  corpus  brought.  Upon  this  state  of  facts 
appearing,  the  judgment  on  the  writ  was,  by  the  consent  of  the 
parties,  adjourned,  and  Justice  Southard  certified  the  whole  mat- 
ter to  the  supreme  court,  then  about  to  sit,  that  judgment  thereon 
might  be  had  at  bar. 

L.  H.  Stockton  appeared  for  the  prosecutor  of  the  writ.  Watt, 
for  the  defendants. 

L.  H.  Stockton  argued — 1.  By  the  statute  of  New  Jersey  (Pat. 
26  §  18)  the  overseers  of  the  poor  were  made  guardians  of  poor 
infants,  and,  as  guardians,  authorized  to  bind  them  by  indenture. 
2.  That  the  act  of  congress  of  the  16th  of  March,  1802,  which 
was  referred  to  by  the  act  of  1815,  fixing  the  peace  establish- 
ment, requires  that  the  consent  of  the  parent,  guardian,  or  mas- 
ter should  be  first  obtained,  be/ore  a  minor  could  be  enlisted. 
The  consent  of  the  parent  was  first  to  be  had,  then  of  the  guar- 
dian. In  this  instance  there  was  no  parent  to  look  to,  and  the 
statutory  guardians  had  given  no  consent.  The  enlistment  was 
therefore  void,  not  voidable,  and  no  subsequent  consent  could 
make  it  good.  3.  The  discharge  in  Philadelphia  has  already 
once  relieved  him  from  the  unlawful  imprisonment  and  ought  to 
have  its  operation  here. 

*558 


2  SOUTH.]  MAY  TERM,  1819.  657 

State  «.  Brearly. 

Wall.  This  court  has  no  jurisdiction.  The  United  States  is 
a  party.  1  Johns.  Cos.  136;  2  Hatfs  L.  Jour.  192;  9  John*. 
S39;  1  Mason  86.  2.  The  enlistment  is  not  void.  By  the 
statute  of  1809,  and  the  rules  and  articles  of  war  which  are 
referred  to  in  the  statute,  it  is  manifest  that  an  infant  under 
eighteen  years  may  be  enlisted,  bat  is  entitled  to  his  discharge  if 
the  consent  be  not  obtained.  This  consent  may  be  of  the  parent, 
master,  or  guardian,  in  the  disjunctive.  The  person  whose  con- 
sent is  to  be  obtained  is  the  one  entitled  to  the  service.  1  Mason 
72.  This  consent  may  be  obtained  after  the  enlistment,  and  will 
confirm  and  make  it  binding.  3.  The  discharge  in  Pennsylvania 
was  altogether  ex  parte;  even  the  enlistment  was  not  and  could 
not  be  there.  It  is  manifest  too,  that  the  master  concealed  from 
the  court,  the  consent  which  he  had  given.  The  court,  also,  go 
too  far ;  they  discharge  not  only  from  the  imprisonment,  but  from 
the  enlistment  also. 

L.  H.  Stockton,  in  reply,  insisted  that  jurisdiction  in  cases  like 
this  had  never  been  surrendered,  and  therefore  remained  to  the 
states.  Const.  U.  S.  art.  V.,  and  ninth  and  tenth  amendments  ; 
5  Sinn.  385.  That  the  contract  here  was  void ;  it  was  against 
the  infant  and  not  for  his  benefit,  and  the  guardians,  whose 
power  by  the  statute  is  complete,  never  consented.  6  Bac.  877 
"Statutes"  let.  9;  1  Mason.82. 

This  case  was  presented  for  consideration  at  the  close  of  the 
term.  The  court  looked  into  it  and  directed  Justice  Southard  to 
pronounce  the  judgment. 

SOUTHARD,  J. 

I  am  directed  to  deliver  the  opinion  of  the  court  and  waive 
the  question  of  jurisdiction  as  one  upon  which  it  is  not  necessary, 
in  this  case,  to  decide.  In  doing  this,  however;  without  entering 
into  any  argument  upon  the  subject,  I  must  individually  remark 
that  the  question  is  of  no  ordinary  importance,  and  I  think  it 
will  require  in  me  a  great  struggle,  both  of  feeling  and  judgment, 
ever  to  arrive  at  the  point  where  I  shall  be  prepared  to  deny 
the  jurisdiction  of  the  state  and  say  that  she  has  surrendered  her 
*559  42 


658  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

State  r.  Brearly. 


independence  on  questions  like  this;  that  her  highest  judicial 
tribunal  for  such  purposes  is  incapable  of  inquiring  into  the 
imprisonment  of  her  citizens,  no  matter  how  gross  or  illegal  it 
may  be,  provided  it  be  by  agents  of  the  United  States  and  under 
color  of  their  laws. 

There  are,  indeed,  cases  of  daily  occurrence  in  which  the  citi- 
zens of  the  state  are  parties  but  of  which  we  have  not  jurisdic- 
tion. They  are  those  which  originate  from  and  depend  altogether 
upon  the  nature,  character  and  powers  of  the  general  government, 
and  which  would  not  have  existed  without  its  formation ;  such, 
for  example,  as  relate  to  its  revenue.  These  subjects,  belonging, 
in  all  respects,  exclusively  to  the  United  States,  the  state,  or  its 
agents,  cannot  judge  concerning  them,  unless  the  power  be  ex- 
pressly granted  by  the  constitution,  to  which  the  state  has  given 
its  assent.  There  are  other  questions  where  the  state  and  federal 
courts  both  have  jurisdiction.  They  are  such  as  existed  and 
were  the  subjects  of  state  cognizance  and  judicial  notice  before  the 
*formation  of  the  general  government,  and  are  given  to  the 
United  States,  but  altogether  without  words  of  exclusion  used  in 
application  to  the  state.  They  are  possessed  by  the  federal  courts 
because  expressly  given  ;  they  are  retained  by  the  states  upon  the 
impregnable  ground  that  they  have  never  been  surrendered.  The 
present  appears  to  me  to  be  a  case  where  the  right  of  jurisdiction 
did  exist  in  this  court,  in  full,  ample  and  complete  extent,  and  it 
must,  therefore,  still  exist,  unless  surrendered  by  clear,  explicit 
and  indubitable  grant.  It  is  a  right  of  judgment  upon  habeas 
corpus  ;  it  is  a  question  of  imprisonment  or  release  of  the  citizen. 
When  and  how  were  that  right  and  question,  the  dearest  to  the 
citizen,  relating  to  the  highest  duty  of  a  government,  to  the 
proudest  attribute  of  sovereignty,  given  up  and  surrendered  ? 
Have  we  lost  the  jurisdiction  because  we  cannot  construe  and  de- 
termine the  extent  and  operation  of  acts  of  congress  ?  We  are 
often  compelled  to  construe  them;  they  are  our  supreme  law 
when  made  in  conformity  with  the  constitution.  Is  it  because 
the  United  States  is  a  party  ?  How  does  she  become  a  party 
on  such  a  question  ?  Is  she  a  party  for  the  purposes  of  despot- 
ism whenever  a  man  who  holds  a  commission  from  her  shall, 

*560 


•2  SOUTH.]  MAY  TERM,  1819.  659 

State  v.  Brearly. 

without  legal  authority,  or  in  violation  of  her  own  statutes,  in- 
jure, imprison  and  oppress  the  citizen  ?  Surely  not.  Is  it  be- 
<ause  the  United  States  judges  have  jurisdiction?  The  jurisdic- 
tion of  one  does  not  exclude  the  other,  unless  expressly  and  in 
words  so  ordained  and  ordered.  To  my  mind,  therefore,  under  its 
present  impressions,  there  is  no  real  difficulty  on  this  part  of  the 
-case.  The  power  of  this  court,  in  rescuing  the  citizens  from  unlaw- 
ful imprisonment,  is  without  limit  from  any  of  these  sources  ;  and 
I  do  not  see  how  it  can  be  otherwise,  so  long  as  any  portion  of 
sovereignty  remains  in  the  state.  But  I  have  merely  suggested 
these  ideas  because  the  subject  is  deeply  important,  and  I  did  not 
feel  willing  to  give  the  assent  which  would  seem  to  arise  from 
silence,  to  the  doctrine  that  jurisdiction  was  not  in  this  court 
upon  this  question.  These  suggestions,  however,  are  to  be  re- 
garded as  my  own,  the  opinion  of  the  court  resting  on  other 
grounds. 

The  facts  in  the  case  are  these  :  Isha  Davidson  is  a  child  of 
poor  parents,  and  was  bound  out  under  our  statute  by  the  over- 
seers of  the  poor ;  before  he  was  eighteen  years  old  he  left  his 
master,  without  his  consent,  and  enlisted  and  received  the  bounty 
and  clothes  which  are  always  given  on  the  enlistment.  His 
mas*ter  claimed  him  from  the  officer  under  whose  command  he 
was,  who  surrendered  him,  taking,  it  is  understood,  security  for 
the  bounty  and  value  of  the  clothes.  After  this  the  master,  of 
his  own  will,  without  any  interference  on  the  part  of  the  officers, 
returned  in  company  with  Davidson  and  freely  surrendered  him, 
upon  the  enlistment  which  had  been  made,  and  confirmed  that 
enlistment  as  far  as  he  could  by  endorsing  his  consent  upon  it 
and  receiving  the  security  which  he  had  given  for  the  bounty. 
Davidson  was  removed  to  Fort  Mifflin,  an  application  made  for 
a  habeas  corpus  in  Philadelphia,  and  Davidson  adjudged  to  be 
freed  from  the  imprisonment  complained  of.  On  his  return 
with  his  master  he  was  here  again  taken  possession  of  by  the 
officer,  and  this  occasioned  the  issuing  of  the  present  writ. 

In  looking  into  the  facts  it  is  very  obvious  that  the  conduct 
of  the  master  has  not  been  such  as  to  excite  any  feeling  on  the 
part  of  this  court  in  his  favor.  If  he  loses  the  service  of  his 

*561 


660  NEW  JERSEY  SUPREME  COURT.     [5 

State  v.  Brearly. 

apprentice  he  must  charge  the  loss  to  his  own  conduct.  It  is 
also  obvious  that  the  discharge  in  Philadelphia  furnishes  no 
impediment  to  the  investigation  of  the  case  here.  The  decision 
of  the  court  there  could  in  no  possible  respect  bind  this  court 
and  close  its  inquiry  on  this  subject.  Its  opinion  may  have  beea 
correct,  yet  a  contrary  opinion  may  be  equally  correct  here  and 
at  this  time.  Its  inquiry  and  command  must  be  bounded  by  the 
state  in  which  it  sat,  and  although  the  imprisonment  may  have 
been  unlawful  there,  yet  another  state  of  facts  may  have  occurred 
which  will  render  it  lawful  here.  It  is  true  the  judgment  of 
that  court  purports  to  be  not  only  a  discharge  from  the  imprison- 
ment, but  from  the  enlistment  also ;  but  it  is  not  perceived  how, 
upon  the  habeas  corpus,  the  court  can  go  beyond  the  confine- 
ment, which  is  the  great  and  sole  object  of  the  writ.  Nor  can 
we  see  what  evidence  was  there  offered  in  order  to  determine 
whether  the  whole  case  was  exhibited,  or  whether  we  are  called 
on  to  form  a  judgment  upon  a  totally  different  case.  Were  we 
to  judge  alone  from  the  record,  or  from  that  connected  with  the 
admissions  of  the  parties,  even  the  enlistment  itself  was  not 
shown,  nor  was  it  at  all  proven  that  the  master  had  at  any  time- 
given  his  consent.  It  is  believed  that  these  facts  were  concealed. 
But  be  this  as  it  may,  we  do  not  apprehend  that  that  record  im- 
pedes our  inquiry. 

The  right  of  Isha  Davidson  to  a  discharge  depends  upon  the 
*proper  construction  of  the  acts  of  congress  fixing  and  regulat- 
ing the  military  peace  establishment  of  the  United  States.  They 
provide  for  the  enlistment  of  persons  between  the  ages  of 
eighteen  and  thirty-five,  and  five  feet  six  inches  high ;  but  the 
regulation  as  to  height  and  age  is  not  to  extend  to  musicians  nor 
to  those  soldiers  who  re-enlist  into  the  service.  And  "  no  person 
under  the  age  of  twenty-one  years  shall  be  enlisted  or  held  in 
the  service  without  the  consent  of  his  parent,  guardian  or  master,, 
first  had  and  obtained,  if  any  he  have."  In  the  construction  of 
these  provisions  we  must  not  lose  sight  of  three  ideas.  1.  That 
the  power  to  raise  armies  has  been  expressly  granted  to  congress. 
They  have  full  and  entire  control  over  it.  What  they  enact, 
therefore,  on  that  subject  is  to  be  liberally  construed.  2.  We 

*562 


2  SOUTH.]  MAY  TERM,  1819.  661 

State  - .  Brearly. 

*re  not  to  regard  the  employment  or  profession  of  a  soldier  as 
unprofitable  or  dishonorable,  or  in  any  way  injurious  to  the 
citizen.  Whatever  may  be  our  private  feelings  when  looking 
into  an  act  of  congress  making  provision  for  the  creation  and 
support  of  an  army,  we  are  not  permitted  to  regard  it  in  an  un- 
friendly or  unfavorable  light.  So  far  as  relates  to  the  import  of 
the  laws  and  the  objects  of  the  government,  it  is  to  be  esteemed 
both  a  profitable  and  reputable  profession.  No  inference,  there- 
fore, is  to  be  made  in  favor  of  the  discharge  of  an  infant  because 
the  enlistment  is  against  him  and  not  for  his  benefit.  3.  The 
provisions  of  the  law  authorize  the  enlistment  for  musicians  of 
persons  under  eighteen  years.  There  is  but  one  form  of  enlist- 
ment ever  provided  or  used  under  the  laws  or  the  rules  and 
articles  of  war ;  and  as  persons  are  enlisted  under  eighteen  for 
musicians,  and  all  are  enlisted  under  the  same  form,  it  must  be 
shown  that  the  object  here  was  not  to  make  him  a  musician. 
We  do  not  presume  and  infer  this.  It  must  be  proved.  But 
•we  are,  in  this  case,  left  without  information  upon  the  point. 

The  result  of  these  ideas  is  that  an  officer  may  enlist  a  person 
under  eighteen,  and  the  enlistment  is  not  void  as  against  law  and 
the  interest  of  the  infant ;  it  is  voidable  only,  and  that  by  those 
who  have  a  right  to  complain.  He  may  be  enlisted,  but  he  can- 
not be  held  after  it  is  shown  that  some  one  has  a  right  to  com- 
plain of  his  detention. 

The  persons  whose  consent  is  pointed  out  as  necessary  are  the 
parent,  the  guardian  or  the  master.  But  is  the  consent  of  all 
necessary  ?  Certainly  not,  if  the  ideas  before  suggested,  or  the 
phraseology  of  the  law,  be  well  considered.  These  persons  are 
*named  in  the  disjunctive ;  the  business  is  regarded  as  honorable; 
the  only  thing  which  any  one  is  considered  as  losing  is  the  service 
of  the  person  enlisted.  The  person  entitled  to  that  is  the  only 
one  whose  consent  is-  to  be  obtained.  The  want  of  the  master's 
<x>nsent,  therefore,  where  there  is  a  master  who  claims  the  service, 
is  the  only  one  which  can  avoid  the  enlistment.  He  is  the  only 
person  who  can  claim  the  discharge.  By  whom,  then,  can  the 
release  of  Isha  Davidson  be  demanded?  Not  by  himself.  So 
far  as  he  can  he  has  more  than  once  consented,  and,  as  far  a-  I 

*563 


662  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

State  v.  Brearly. 

perceive,  even  now  consents ;  and  in  no  respect  does  he  suffer 
wrong.  By  his  parents  ?  He  is  the  child  of  the  public.  I  do- 
not  know  that  he  has  parents  living.  If  he  have  they  long  since 
gave  up  all  control  over  him.  By  the  guardians?  They  have 
discharged  their  duty  in  disposing  of  and  binding  him,  and  they 
lose  nothing  by  his  change  of  situation.  By  the  master  ?  He 
was  entitled  to  the  service;  his  consent  ought  to  have  been> 
obtained;  and  not  having  been,  the  enlistment  was  voidable  if 
he  demanded  his  servant.  But  he  alone  can  make  the  demand — 
he  alone  can  avoid  the  enlistment.  Can  he  now  do  it  ?  He  has 
in  the  most  solemn  and  voluntary  manner  given  and  subscribed 
his  consent.  He  thus  ratified  and  rendered  valid  an  act  which 
he  might  have  avoided,  and  to  the  validity  of  which  his  consent 
only  was  wanting.  He  brought  back  his  apprentice,  and,  with 
the  approbation  of  both,  delivered  him  to  the  officer  and  took  up 
the  security  he  had  given  for  the  bounty  and  clothing.  Shall  he 
now  be  permitted  to  reclaim  him,  and  thus  hold  both  the  service 
and  the  bounty  ?  It  would  be  as  much  against  justice  as  against 
law.  He  has  barred  himself  from  complaint.  He  cannot  now 
destroy  the  enlistment  which  he  before  legalized. 

The  opinion  of  the  court,  therefore,  is  that  none  but  the  master 
had  a  right  to  claim  the  discharge  of  the  minor ;  that  the  master 
has  prevented  himself  from  making  this  claim ;  that  no  illegal 
imprisonment  is  perceived ;  that  no  cause  has  been  shown  why 
Isha  Davidson  should  be  discharged ;  and  it  is  therefore  ordered 
that  he  be  left  in  the  custody  of  the  defendants. 


2  SOUTH.]  MAY  TERM,  1819.  663 

Sayre  r.  Reynolds. 


*DANIEL  SAYRE  v.  ABRAHAM  REYNOLDS  and  another, 
administrators  of  Abraham  Brookfield,  deceased. 

Rule  to  stay  ezecation.  (a) 
In  error. 

At  the  January  term,  1819,  of  the  common  pleas  of  Essex, 
there  was  trial,  verdict  and  judgment  against  Sayre.  Upon  the 
judgment  execution  was  issued,  tested  the  second  Tuesday  of 
January,  1819,  returnable  to  the  April  term  following.  At  the 
April  term  a  writ  of  error  from  the  supreme  court  was  presented, 
good  and  sufficient  bail  filed,  and  the  cause  removed. 

And  now  Scudder,  for  plaintiff  in  error,  moved  for  a  writ  of 
supersedeas  to  the  sheriff,  or  a  rule  upon  him,  to  stay  proceed- 
ings upon  the  execution.  Cro.  Jac.  634;  ®@  Vln.  93. 

THE  COURT,  observing  that  the  party  might  have  either  the 
writ  or  the  rule,  as  he  preferred,  directed  the  rule  to  be  entered 
"  that  the  sheriff  and  all  acting  under  him  do  cease  from  all 
further  proceedings  whatever  on  the  said  execution." 

(a)  See  Ludlow  v.  Ludlow,  1  South.  S89 ;  Allen  v.  Joiee,  3  Hoist.  ISfy  Bilder- 
bock  v.  Moore,  2  Haarr.  510  ;  Chadwick  v.  Reader,  4  Harr.  156;  Allen  v.  Hopper, 
4  Zab.  514;  Suydani  v.  Hoyt,  1  Ihiteh.  2S2  ;  Me  Williams  v.  King,  S  Vr.  SI; 
Allen  y.  Shwrto,  1  Hear.  ttl. 

*564 


"CASES  DETERMINED 


IN   THE 


SUPREME  COURT  OF  JUDICATURE 


OF  THE 


STATE    OF    NEW   JERSEY 

SEPTEMBER  TERM,  1819. 


DAVID  MILLS  v.  ROBERT  SLEGHT. 
On  certiorari. 

This  case  was  argued  by  Drake,  for  plaintiff  in  certiorari,  and 
Attorney- General,  for  defendant. 

Opinion  of  the  court. 

KlRKPATRICK,  C.  J. 

From  the  return  made  to  this  writ  it  appears  that  on  the  13th 
of  January,  1817,  a  judgment  was  entered  by  this  justice,  in  an 
action  wherein  the  said  Robert  Sleght  was  plaintiff,  and  Moses 
Meeker  and  Den  man  Meeker  defendants,  for  the  sum  of  $42.63 
debt,  and  fifty-three  cents  costs,  upon  the  confession  of  Moses 
Meeker,  one  of  the  defendants,  only,  and  in  the  absence  of  Den- 
man  Meeker,  the  other  defendant,  and  that  without  any  state  of 
demand  filed,  or  witness  sworn,  though,  from  the  very  careless 
*565  665 


866  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Mills  v.  Sleght. 


and  imperfect  manner  in  which  that  judgment  is  entered,  it  i& 
doubtful  whether  it  was  intended  to  be  against  both  the  defend- 
ants, or  against  Moses  only,  (a) 

That  on  the  14th  of  May,  1817,  the  said  Denman  Meeker, 
one  of  the  said  defendants,  being  actually  imprisoned  for  debt  in 
the  common  gaol  of  the  county  of  Essex,  was  discharged  from 
*his  said  imprisonment  under  the  insolvent  laws  of  this  state,  by 
the  judges  of  the  inferior  court  of  common  pleas  of  the  said 
county. 

That  on  the  12th  of  January,  1818,  an  execution  was  issued 
upon  the  judgment  above  stated,  and  put  into  the  hands  of  a 
constable,  who,  thereupon,  took  the  body  of  the  said  Denman 
Meeker,  and  delivered  him  to  the  keeper  of  the  common  gaol  of 
the  said  county  of  Morris,  of  which  said  county  the  said  David 
Mills  was  then  the  sheriff ;  that  the  said  David  Mills,  who  is  the 
defendant  here,  upon  the  production  of  the  said  discharge  by  the 
said  Denman  Meeker,  supposing,  probably,  that  his  person  could 
not  lawfully  be  imprisoned  for  any  debt  due  before  the  date  of 
the  said  discharge,  did  not  detain  him  in  prison,  but  suffered  him 
to  go  at  large ;  and,  for  this  cause,  this  action  is  brought. 

Upon  the  trial,  the  defendant  called  upon  the  justice  to  de- 
clare the  law  to  the  jury,  and  to  charge  them  that  Denman 
Meeker,  upon  the  case  made  out  as  above  stated,  could  not  law- 
fully be  imprisoned  upon  the  said  execution ;  and  that,  therefore, 
the  said  sheriff  was  justifiable  in  letting  him  go  at  large,  and 
was  not  liable  to  an  action  therefor.  But  the  justice  refused  so 
to  charge,  and  left  the  whole  matter  to  the  jury. 

That  it  is  the  office  of  the  justice  to  declare  the  law,  is  very 
certain,  but  if  he  should  be  moved  to  declare  that  to  be  the  law 
which  is  not  so,  and  he  should  refuse,  the  party  has  no  ad- 
vantage. (6)  The  motion  in  this  case,  then,  and  the  refusal  of 

(a)  See  Schuyler  v.  McOrea,  1  Harr.  248 ;  Sordine  v.  Service,  1  Harr.  47 ; 
McMurtrie  ads.  Doughten,  4  Zab.  252. 

(b)  PuUen  v.  Boney,  1  South.  181 ;  Broadwell  v.  Nixon,  1  South.  S62  ;  West- 
cott  v.  Danzenbaker,  1  Hal.  132;  Bellis  v.  Phillips,  4  Dutch.  125  ;  Ayres  v.  Fan 
Lieu,  post  767;  Bodenbough  v.  Bosebury,  4  Zab.  49  S  ;  Graham  v.  Whitely,2 
Dutch.  255  ;   Cross  v.  Kemp,  16  Vr.  51. 

*566 


2  SOUTH.]          SEITKMBER  TERM,  1819.  667 

Mills  r.  Sleght 

the  justice,  raise  the  question  here,  whether  the  said  Denn.an 
Meeker  could  lawfully  be  so  imprisoned,  and  whether  the  sheriff 
was  justifiable  in  letting  him  go  at  large. 

And  upon  this,  it  may  be  said,  generally,  that  an  executive 
officer  to  whom  process  is  directed  by  a  court  having  jurisdic- 
tion of  the  subject-matter,  is  to  execute  that  process  without 
inquiring  into  the  regularity  or  irregularity,  either  of  the  process 
itself  or  the  judgment  upon  which  it  is  founded,  (a)  Many 
cases  may  happen,  and  many  cases  do  actually  happen,  in  which 
a  discharge  of  this  kind,  how  perfect  soever  in  form,  could  not 
be  pleaded,  or,  if  pleaded,  could  not  avail  the  party  pleading  it. 
To  say,  therefore,  that  the  sheriff  or  other  executive  officer,  upon 
the  mere  inspection  of  it,  should  at  all  times  give  it  operation  in 
this  way,  would  be  laying  down  a  rule  quite  too  broad.  Such 
discharge  is,  indeed,  in  most  cases,  a  good  defence  against  the  im- 
prisonment *of  the  body,  but  then,  like  all  other  defences,  it 
must  be  regularly  pleaded  before  a  judicial  tribunal  having  cog- 
nizance of  the  case.  We  cannot  say,  therefore,  upon  general 
principles,  that  Denman  Meeker  could  not  lawfully  be  impris- 
oned upon  this  execution,  or  that  the  sheriff  was,  strictly  speak- 
ing, justifiable  in  letting  him  go  at  large.  In  order  to  obtain  the 
benefit  of  his  discharge,  the  defendant  should  have  summoned 
the  plaintiff  to  appear  before  the  justice  to  show  cause  &c.  (6) 

But  notwithstanding  this  proceeding  of  the  sheriff,  singly  con- 
sidered, may  not  have  been  lawful,  yet  as  this  court,  in  the  exer- 
cise of  its  high  superintending  powers  over  these  inferior  juris- 
dictions, is  not  merely  to  correct  errors,  technically  speaking,  but 
to  inspect  the  whole  proceeding  and  to  see  that  justice  is  rendered 
according  to  law ;  and  as  there  was  certainly,  in  this  case,  no 
valid  judgment,  if  a  judgment  at  all,  against  Denman  Meeker  to 
justify  this  execution,  that  judgment  having  been  entered  upon 
the  confession  of  Moses  Meeker  only ;  (c)  and  as,  moreover,  the 

(a)  Woodi-uff  v.  Barret,  S  Or.  40 ;  Chadinck  v.  Reeder,  4  Harr.  156  ;  Man- 
gold  v.  Thorpe,  4  Vr.  1S4;  Elmer  v.  Bttrgin,  Penn.  *191;  Brown  v.  Batett,  1 
Zab.46. 

(6)  State  v.  Ward,  S  Hal.  ISO;  Kirby  v.  Garrison,  1  Zab.  179;  Acktrman  v. 
Tan  Houlen,  5  Hal.  SSS  ;  Jay  v.  Slack,  1  South.  77. 

(c)  Liitle  v.  Mtiore,  1  South.  75. 

*567 


668  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Hendricks  v.  Craig. 

said  Denman  Meeker  had  no  opportunity  of  pleading  his  dis- 
charge against  the  issuing  of  the  said  execution,  so  that  the  jus- 
tice of  the  thing  is  plainly  with  him ;  and  as,  therefore,  it  would 
be  unjust  to  suffer  the  plaintiff  to  extort  money  from  the  said 
sheriff  upon  so  rotten  a  foundation,  therefore,  without  yielding 
to  the  suspicion  of  fraud  and  imposition,  so  manifest  upon  the 
whole  transaction,  for  these  causes — 

Let  the  judgment  be  reversed. 


LUTHER  B.  HENDRICKS  v.  WILLIAM  CRAIG. 

1.  Commission  to  take  depositions,  issued  without  affidavits,  motion  in  court, 
and  notice  of  the  motion,  illegal. 

2.  Mode  of  entering  judgments  on  appeals. 


On  certiorari. 

The  facts  in  this  case  are  stated  by  the  chief-justice.  It  was 
argued  by  Scudder,  for  plaintiff  in  eertiorari,  and  Attorney- 
General,  for  the  defendant. 

KlRKPATRICK,  C.  J. 

This  cause  was  originally  instituted  before  John  Wilson,  Esq., 
of  the  county  of  Essex.  Upon  the  return  of  the  process,  Craig, 
the  plaintiff  in  that  court,  appeared  and  filed  his  state  of  demand. 
Hendricks,  the  defendant,  did  not  ap*pear,  but  sent  a  written 
request  for  a  commission  to  take  the  testimony  of  David  Turvey, 
a  resident  of  the  city  of  New  York,  accompanied  by  an  affidavit 
taken  before  Jeremiah  Ballard,  Esq.,  that -the  said  David  Tur- 
vey was  a  material  witness  for  him  in  this  cause,  but  not  that  he 
resided  out  of  this  state.  The  justice,  thereupon,  without  other 
affidavit  or  proof,  and  without  other  or  further  motion  in  open 
court  or  notice  to  the  plaintiff,  issued  a  commission  to  one  David 
S.  Lyon,  of  the  said  city  of  New  York,  to  take  the  testimony 
of  the  said  David  Turvey,  upon  his  corporal  oath  or  affirmation 

*568 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  669 

Heudricks  v.  Crnig.  , 

to  be  taken  before  him,  the  said  commissioner.  Upon  the  trial 
of  the  case,  the  testimony  of  the  said  David  Turvey,  taken  under 
the  said  commission,  was  offered  in  evidence  by  the  said  defend- 
ant, and  though  objected  to  by  the  plaintiff,  was  admitted  and 
read ;  but  a  judgment  was,  notwithstanding,  rendered  for  the 
plaintiff  for  the  sum  of  $69.50  damages,  and  $2.30  costs.  From 
this  judgment  the  defendant  appealed,  and,  upon  the  appeal,  he 
again  offered  to  read  in  evidence  the  testimony  taken  under  the 
said  commission  as  aforesaid  ;  but  the  same  being  again  opposed 
by  the  plaintiff,  it  was  overruled  by  the  court,  and,  upon  other 
evidence,  the  judgment  of  the  justice  was  affirmed,  with  costs. 
This  judgment  upon  the  appeal  is  now  brought  up  here  by  cer- 
tiorari,  and  the  question  is  upon  the  rejecting  of  this  testimony. 

The  act  authorizing  the  issuing  of  commissions  says,  "  that  if 
a  material  witness  reside  out  of  the  state,  it  shall  be  lawful,  on 
affidavit,  or  proof  thereof  to  the  satisfaction  of  the  court,  and  upon 
motion  made  by,  or  on  behalf  of,  either  party,  in  open  court,  to 
issue  a  commission,  authorizing  the  commissioner  to  examine  the 
witness,  on  oath  or  affirmation,  upon  interrogatories  to  be  annexed 
to  the  said  commission ;  and  that  each  party  shall  have  libeity  to 
insert  in  the  interrogatories  such  questions  as  he  may  think  neces- 
sary" 

Now,  as  the  power  of  granting  commissions  to  take  the  testi- 
mony of  absent  witnesses  is  a  new  power  created  by  statute,  the 
rule  is,  that  it  must  be  pursued  strictly  and  in  such  way,  cer- 
tainly, as  that  both  parties  may  have  all  the  advantages  under  it 
which  the  legislature  intended  to  give,  (a) 

Here  there  was  no  affidavit  or  other  proof  that  the  witness 
resided  out  of  the  state ;  there  was  no  motion  in  open  court  for 
the  commission,  or  notice  given  to  the  opposite  party,  nor  oppor- 
tu*nity  afforded  him  to  insert  in  the  interrogatories  the  questions 
which  he  might  thinlc  necessary  ;  in  all  which  respects  the  com- 
mission was  irregularly  issued,  and,  in  the  last,  highly  injurious 
to  the  plaintiff.  (6) 

(a)  Ogden  v.  Robertson,  S  Or.  If 6 ;  Lawrence  v.  Finch,  t  C.  E.  Or.  t+1; 
Moran  v.  Green,  1  Zab.  56£. 

(6)  Wilson  v.  Cornell,  1  South.  117;  Den  v.  Farley,  1  South.  1X4. 

*569 


670  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Hendricks  v.  Craig. 

In  all  these  views  of  the  subject,  therefore,  I  think  the  court 
below  did  right  in  rejecting  this  testimony. 

I  have  only  to  observe  further  in  this  case,  that  there  is  an 
inaccuracy  in  the  manner  in  which  the  judgment  is  entered, 
though  I  believe  that  inaccuracy  is  not  sufficient  ground  of 
reversal  here. 

The  act  giving  the  appeal  speaks  of  the  affirming  or  reversing 
of  the  judgment  of  the  justice ;  and  it  is  not  unusual  for  the 
oourts  of  common  pleas,  as  is  done  in  this  case,  merely  to  enter  a 
judgment  of  affirmance  or  reversal.  But  as  this  is  not  a  court 
of  error,  but  a  court  of  appeal  to  try  the  cause  anew,  upon  the 
merits,  and  to  pronounce  a  final  judgment  thereupon  between 
the  parties,  such  entry  is  not  correct,  (a)  It  ought  to  go  farther, 
and  to  say,  the  court  affirm  the  judgment  of  the  justice,  and  give 
judgment  for  the  plaintiff" for  the  said  sum  of  (in  this  case)  $69.50 
damages  and  $2.30  costs,  and  also  for  the  farther  sum  of  , 

being  the  costs  of  this  appeal;  or,  in  case  they  would  give  a  judg- 
ment different  from  that  rendered  by  the  justice,  then  to  say,  the 
court  reverse  the  judgment  of  the  justice,  and  give  judgment  for 
the  plaintiff' for  the  sum  of  ,  and  also  for  the  further  sum  of 

,  being  costs  of  this  appeal.  And  so  in  all  other  cases, 
according  to  the  nature  of  the  judgment.  But  in  all  courts  of 
appeal  upon  the  merits,  the  judgment  must  be  final.  Here, 
though  the  entry  be  not  formal,  it  may  be  considered  as  final, 
and,  therefore,  upon  the  whole  case — 

Let  the  judgment  be  affirmed. 

NOTE. — In  this  case,  it  was  urged  as  a  reason  for  reversal  that 
the  judgment  of  the  justice  was  not  rendered  at  the  time  of  the 
trial,  but  time  taken  for  advisement,  and  the  judgment  then 
rendered  in  the  absence  of  the  defendant,  without  notice.  (6)  But 

(a)  Hann  v.  Gogling,  4  Hal.  248 ;  Jones  v.  Pitman,  7  Hal.  93  ;  Woodruff  v. 
Badgley,  7  Hal.  367  ;  Saxton  v.  Landis,  1  Harr.  304;  Qarr  v.  Stokes,  1  Harr.  404; 
Glover  v.  Collins,  3  Harr.  236;  Ivins  v.  Schooley,  S  Harr.  269  ;  Cook  v.  Srister,  4 
Harr.  73;  Hurff  v.  Camden,  9  Vr.  289  ;  Housel  v.  Higgins,  IS  Vr.  74.  But  it 
may  be  remitted  for  correction.  Blair  v.  Snover,  5  Hal.  154;  Doremus  v. 
Howard,  3  Zab.  390  ;  Ckeeseman  v.  Cade,  4  Zab.  632. 

(6)  Van  Riper  v.  Van  Riper,  1  South.  156  ;  Clark  v.  Reed,  ante  486. 


2  SOUTH.]         SEFTEMBER  TERM,  1819.  671 

Buckley  t.  Beardslee. 

the  court  did  not  consider  the  reason  valid.  The  defendant 
below  did  not  bring  his  certiorari  to  reverse  the  judgment  of  the 
justice  for  error,  but  took  an  appeal  to  the  common  pleas,  and 
had  a  trial  upon  the  merits.  It  was  the  judgment  of  the  com- 
mon pleas  which  was  removed,  and  the  court  would  not  look 
beyond  it  to  the  proceedings  of  the  justice  in  order  to  find  in 
them  an  objection  which  had  done  the  defendant  no  injury,  (a) 

*In  this  case  also  the  chief-justice  suggested,  as  worthy  ot 
consideration,  whether  the  oath  of  the  witness,  as  administered 
by  the  commissioner,  was  not  altogether  voluntary  and  illegal. 
He  was  directed  to  examine  the  witness  upon  his  corporal  oath 
or  affirmation,  to  be  taken  before  him,  that  is,  before  the  com- 
missioner himself;  and  it  was  to  be  presumed  it  was  so  done, 
though  it  was  not  particularly  so  stated.  Could  the  state  of  New 
Jersey  or  any  of  her  justices  authorize  a  private  citizen  of  the 
state  of  New  York  to  administer  oaths  there  for  any  judicial  pur- 
poses ?  Does  the  act  pretend  to  give  any  such  authority  ?  Is 
not  an  oath  so  administered,  to  say  the  best  of  it,  a  mere  volun- 
tary oath,  and  how  false  soever,  would  not  subject  the  deponent 
to  the  pains  of  perjury?  And  if  so,  could  such  an  oath,  upon 
principle,  be  received  to  establish  the  truth  of  the  fact  between 
contending  parties  in  a  court  of  justice? 


GEORGE  BUCKLEY  v.  GEORGE  BEARDSLEE. 

1.  "  I  do  promise  to  pay  the  amount  Ac.,  if  C.  S.  should  not  pay  it  in  six 
months,"  a  sufficient  promise,  under  the  statute  of  frauds,  if  it  is  in  writing. 

2.  Consideration  of  promise.  (6) 

(o)  Nicholson  v.  Wood,  S  Qr.  464;  Rodenbough  v.  Ronebury,  4  Zab.  4B1 ; 
State,  Dunn  v.  Overseers  <fec.,  S  Vr.  fSS;  Vannoy  v.  Given*,  S  Zab.  SOI;  Obert 
v.  Whitehead,  4  Hal.  *45. 

(6)  See  Shepherd  v.  Laylon,  Penn.  *618 ;  Herbert  v.  Cooper,  Penn.  *1044; 
Bigelow  v.  Pine,  Penn.  *5SS  ;  Youngs  v.  Shough,  S  Or.  £7  ;  Mundy  v.  Boss,  S 
Gr.  466;  Ashcroft  v.  Clark,  post  577  ;  Croser  v.  Chambers,  Spcn.  S58  ;  Lainy  v. 
Jsce,  Spen.  SS7. 

*570 


672  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Buckley  v.  Beardslee. 
On  certiorari. 

Attorney-General,  for  the  plaintiff. 

The  state  of  demand  sets  out  the  following  case :  That  Beards- 
lee,  on  the  2d  of  July,  1810,  became  security  for  one  Cornelius 
Smith  to  Martin  Ryerson  and  Matthias  Little,  in  a  note  of  hand 
for  $64.25,  payable  the  1st  of  November,  1810 ;  that  on  the 
llth  of  January,  1811,  Ryerson  and  Little  obtained  judgment 
on  the  note  for  $65  debt  and  fifty-three  cents  costs,  before  Z. 
Sutton,  Esq. ;  that  execution  was  issued  on  the  judgment,  and 
that  on  the  25th  of  February,  1811,  Beardslee  paid  the  amount 
of  it  to  the  plaintiffs  ;  that  Beardslee,  "  being  about  to  prosecute 
and  pursue  the  said  Cornelius  and  his  property  for  the  amount 
of  the  judgment  aforesaid,  the  said  George  Buckley,  by  his  agree- 
ment in  writing,  bearing  date  the  25th  of  April,  1811,  and 
signed  by  said  George  Buckley,  in  consideration  that  the  said 
George  Beardslee  would  delay  to  prosecute  and  pursue  the  said 
Cornelius  Smith  for  the  amount  of  the  judgment  aforesaid,  for  the 
space  of  six  months  from  the  date  of  said  agreement,  undertook 
and  promised  the  said  George  Beardslee  to  pay  him  the  *amount 
of  the  said  judgment  and  execution  if  the  said  Cornelius  should 
not  pay  the  same  within  the  space  of  six  months  from  the  date 
of  said  agreement  to  the  said  George  Beardslee ;  and  the  said 
George  Beardslee  says  he  did  delay  to  prosecute  and  pursue  the 
said  Cornelius  and  his  property,  and  hitherto  hath  delayed  and 
forborne,  yet  the  said  Cornelius  hath  not,  nor  has  the  said  George 
Buckley,  yet  paid  the  said  George  Beardslee  the  amount  of  the 
said  judgment  and  execution." 

The  suit  was  commenced  on  the  26th  of  April,  1817.  On  the 
trial  of  the  cause,  by  the  consent  of  parties,  the  note  from  Smith 
and  Beardslee  to  Ryerson  and  Little,  the  judgment  and  execu- 
tion upon  the  note,  and  the  undertaking™  writing  from  Buckley 
to  Beardslee  were  severally  admitted  and  read  to  the  jury.  The 
last-mentioned  paper  is  in  the  words  following,  viz. :  "  Judgment 
before  Zebulon  Sutton,  Esq.,  the  llth  of  January,  1811.  Mar- 
tin Ryerson  and  Matthias  Little  v.  Cornelius  Smith  and  George 

*571 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  673 

Buckley  r.  IJeanlslee. 

Beardslee ;  execution  $65,  cost  $1.05,  centage  $1.30,  amount 
$67.35.  I,  George  Buckley,  of  frrankford,  do  promise  and  en- 
gage to  pay  or  cause  to  be  paid  to  the  said  George  Beardslee  the 
amount  of  the  above-stated  execution,  with  cost,  on  the  follow- 
ing condition,  viz.:  that  if  the  said  Cornelius  Smith  should  not 
pay  or  cause  to  be  paid  the  same  in  six  months  from  this  date, 
then  I,  the  said  George,  will  pay  the  amount  of  the  above-stated 
execution  to  George  Beardslee  or  his  assigns,  without  defalcation 
or  discount.  Witness  my  hand  this  25th  day  of  April,  1811. 
George  Buckley.  Witness  present,  Charles  Ingliss." 

Several  witnesses  were  sworn,  and  there  were  verdict  and  judg- 
ment for  plaintiff  for  $93.81. 

Three  reasons  for  reversal  were  filed:  1.  The  state  of  demand 
contains  no  legal  cause  of  action,  inasmuch  as  the  contract  therein 
stated  is  not  sufficient  in  law  to  maintain  an  action.  2.  The 
agreement  alleged  and  proved  is  variant  from  the  state  of  de- 
mand. 3.  The  said  alleged  agreement  is  an  undertaking  to  pay 
the  debt  of  another,  without  any  consideration  appearing  upon 
the  said  alleged  agreement.  The  last  of  these  was  principally 
relied  on  in  the  argument. 

KIRKPATRICK,  C.  J.,  and  ROSSELL,  J.,  affirmed  the  judg- 
ment, none  of  the  reasons  being  sufficient  for  reversal. 

*SOUTHARD,  J. 

The  declaration  does  not  merely  set  out  an  agreement  which 
the  plaintiff  below  was  to  establish  by  evidence,  but  a  written 
agreement  to  pay  money  for  another,  and  states  a  consideration 
as  contained  in  that  written  agreement.  The  paper  offered  <.!(>*•> 
not  contain  such  a  consideration.  The  paper  offered  in  evidence 
is  not  the  paper  set  out  in  the  state  of  demand.  It  was  not, 
therefore,  evidence  to  support  the  demand.  The  plaintiff  ought 
to  have  proved  his  contract  as  he  laid  it. 

The  agreement,  I  think,  amounts  to  this,  that  if  Smith  dui 
not  pay  the  judgment  which  is  recited  within  six  months  he, 
Buckley,  would.  But  why  would  he  pay  it  ?  What  reason  in- 
duced him  ?  What  consideration  supported  the  promise  ?  None 
*572  43 


674  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Buckley  v.  Beardslee. 

is  stated,  and,  therefore,  the  question  is  fairly  presented,  Must 
the  written  memorandum,  under  the  statute  of  frauds,  to  pay  the 
debt  of  another,  contain  as  well  the  consideration  as  the  promise ; 
or  is  the  promise  alone  sufficient  ? 

Upon  this  question  I  entertain  the  following  opinions  : 

1.  A  promise  without  a  consideration  is  void,  and  the  mere 
circumstance  that  it  is  reduced  to  writing,  if  there  be  no  consider- 
ation, does  not  make  it  valid. 

2.  The  design  of  the  statute  was  not  to  prevent  contracts,  void 
for  want  of  consideration,  from  being  sustained  in  courts  of  jus- 
tice.    Such  contracts  were  not  sustained  before  the  statute  was 
made,  and  it  was  more  than  useless  to  say  that  they  should  not 
be  enforced. 

3.  The  design  of  the  statute  was  to  prevent  the  enforcing  of 
contracts,  not  void,  but  legal  in  their  nature,  for  the  payment  of 
another's  debt,  unless  the  whole  contract  was  in  writing.     The 
attempt  to  enforce  such  contracts  gave  rise  to  perjury,  as  was  sup- 
posed.    Now,  the  proof  of  the  consideration  was  quite  as  likely 
to  induce  perjury  as  the  proof  of  the  terms  of  the  contract.     It 
is  reasonable  to  suppose  the  one  would  be  guarded  against  as 
much  as  the  other. 

4.  If  the  design  was  to  prevent  the  enforcing  of  a  legal  con- 
tract to  pay  another's  debt — I  mean  a  contract  with  sufficient 
consideration — and  if  the  statute  require  that  contract  to  be  in 
writing,  it  surely  means  that  the  whole  contract  should  be  in 
writing,  and  not  such  part  only  as  is,  in  its  very  nature,  illegal 
and  void,  without  the  rest.     I  therefore  believe  that  the  consider- 
ation of  the  promise,  as  well  as  the  promise  itself,  ought  to  be  in 
writing. 

*  5.  I  think  the  terms  of  the  statute  support  this  conclusion. 
"  Unless  the  agreement,  or  some  note  or  memorandum  thereof,  be 
in  writing."  Now,  what  is  an  agreement  ?  A  consideration  is 
always  contained  in  the  legal  idea  of  an  agreement,  and  writers 
as  well  as  courts,  always  so  consider  it.  3  Burr.  1670 ;  Plow. 
308  b  ;  Dyer  336  b  ;  2  Bl.  Com.  446.  If,  then,  this  agreement 
had  stated  the  forbearance  or  delay  to  prosecute,  which  is  stated 
in  the  demand,  it  would  have  set  forth  a  valid  consideration,  and 

*573 


SOUTH.]          SEPTEMBER  TERM,  1819.  675 


Carhart  v.  Miller. 


Jbeen  sufficient  under  the  statute  of  frauds.  As  it  has  not  set 
forth  that  or  any  other  consideration,  I  think  it  is  insufficient, 
.and  that  the  judgment  ought  to  be  reversed. 

Judgment  affirmed. 


ROBERT  CARHART  v.  HUGH  MILLER,  ADAM  WANDLINQ,  real 

plaintiff. 

1.  If  sealed  bill  "  to  A  or  his  heirs"  be  assigned,  suit  most  be  in  name  of 
the  assignee,  (a) 

2.  Plea  of  former  judgment.  (6) 


On  certiorari. 

For  the  case,  see  the  opinions.  Vroom,  for  plaintiff.  Ewing, 
for  defendant. 

KlRKPATRICK,  C.  J. 

If  I  understand  this  case,  which,  indeed,  it  is  not  very  easy  to 
do,  the  judgment  cannot  be  maintained. 

On  the  23d  of  March,  1809,  Robert  Carhart  gave  a  sealed 
bill  to  Hugh  Miller  for  $31.33,  payable  in  three  months,  and  on 
the  3d  of  February,  1811,  he  paid  $12,  which  is  endorsed. 

On  the  19th  of  March,  1811,  Miller  assigned  this  bill  to 
Samuel  Carhart  for  value  received. 

On  the  5th  of  March,  1814,  Miller  instituted  a  suit  against 
Carhart  for  $2.67,  before  John  Apgar,  Esq.,  and  obtained  a  judg- 
ment for  that  sum,  with  costs,  and  on  the  20th  of  February, 

(a)  See  Reed  v.  Bainbridge,  1  South.  356;  Halsey  v.  Dehart,  Gn.e  OS;  Btllon 
v.  Gibbon,  7  Hal.  77;  Matiack  v.  Hendrickson,  1  Or.  MS;  Alien  v.  Pancoatt, 
Spcn.  71 ;    Winfield  v.  City  of  Hudson,  4  Dutch.  £64. 

(b)  Conine  v.  Scoby,  ante  510 ;  Demund  v.  French,  pott  SS9  ;  Cheesman  v. 
Leonard,  Penn.  *549  ;  Smith  v.  Finley,  Penn.  *1005  ;  Smock  v.  T  hrockmorton,  S 
Hal.  S16;   Davisson  v    Gardner,  5  Hal.  S89  ;    Ward  v.   Ward,  2  Zab.  699; 
Matthews  v.  Roberts,  1  Gr.  Ch.  33S  ;  Damson  v.  Johnson,  1  C.  E.  Or.  119. 


676  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Carhart  v.  Miller. 


1818,  this  action  was  instituted,  in  the  form  in  which  it  appears,, 
to  recover  the  sum  due  in  the  said  bill  of  the  23d  of  March,. 
1809. 

The  defendant  pleaded  the  former  judgment  had  and  entered 
before  Justice  Apgar,  in  his  defence,  and  offered  the  transcript 
of  his  docket  in  evidence.  And  though  it  would  appear  that 
this  *was  a  good  plea  if  the  bill  had  not  been  assigned,  yet  that 
having  been  assigned,  and  become  the  property  of  another,  it 
was  impossible  that  it  could  lawfully  have  been  included  in  that 
judgment,  and,  therefore,  the  plea  was  unavailable. 

But  then  this  presents  another  difficulty  which  is  fatal  to  the 
judgment  in  this  action.  The  bill  having  been  assigned,  and 
the  legal  property  therein  having  been  transferred  to  Samuel 
Carhart,  neither  Miller  nor  Walling,  nor  any  other  person,  with- 
out an  assignment,  could  maintain  an  action  upon  it. 

Bonds  and  sealed  bills  assigned  do  not  now  stand  upon  the 
same  footing  as  formerly.  Then  the  equitable  interest  only 
passed  by  the  assignment  and  the  legal  interest  remained  in  the 
assignor,  and,  therefore,  the  action  at  law  must  necessarily  be 
brought  in  his  name ;  but  now,  when,  by  the  statute,  both  the 
legal  and  the  equitable  interest  passes  to  the  assignee,  the  action, 
can  be  maintained  only  in  his  name. 

Let  this  judgment,  therefore,  be  reversed. 

SOUTHAKD,  J. 

This  action,  which  was  commenced  on  the  20th  of  February, 
1818,  is  founded  upon  a  sealed  bill,  signed  by  Carhart,  promis- 
ing, three  months  after  date,  to  pay  "to  Hugh  Miller  or  his 
heirs,"  $31.33,  with  interest,  and  bearing  date  23d  of  May,  1809. 
On  the  bill  there  is  a  credit  of  $12,  on  the  3d  of  February, 
1811,  and  an  endorsement  in  the  following  words:  "March 
19th,  1811.  I  assign  all  my  right,  claim  and  demand  of  the 
within  note  to  Samuel  Carhart,  for  full  value  received  by  me, 
Hugh  Miller,"  and  the  name  of  Samuel  Carhart  is  also  endorsed 
on  it. 

Carhart,  the  defendant,  pleaded  that  the  action  ought  to  abate, 
because,  before  the  commencement  of  it,  viz.,  on  the  19th  of 

*574 


SOUTH.]          SEPTEMBER  TERM,  1819.  677 


Carhart  *.  Miller. 


March,  1814,  Miller  had  sued  him  before  John  Apgar,  Esq.,  for 
$2.87,  and  on  the  2d  of  April,  1814,  recovered  judgment  for  the 
same,  and  that  this  bill  was,  or  ought  to  have  been,  included  in 
that  judgment.  The  facts  stated  in  the  plea  as  to  the  suit  and 
judgment  were  supported  by  a  transcript  from  Justice  Apgar, 
and  it  is  supposed  that  this  being  so,  the  plaintiff  below  ought 
not  to  have  prevailed  in  his  action ;  but  I  am  at  a  loss  to  per- 
ceive how  that  action  can  be  considered  as  having  any  influence 
upon  this.  Miller  had  parted  with  the  bill  before  he  commenced 
that  action;  but  even  if  he  had  not,  if  both  had  been  in  *his 
hands,  he  might  well  have  sustained  a  separate  action  on  each  at 
the  same  time.  The  account  and  the  sealed  bill  were  separate 
<"diises  of  action,  which  might,  it  is  true,  have  been  united ;  but 
there  is  no  reason  to  be  found  either  in  common  law  or  any  of 
our  statutory  provisions  which  would  render  a  suit  and  judg- 
ment upon  the  one,  a  bar  to  a  suit  upon  the  other.  The  plaintiff 
has  it  in  his  power  to  unite  or  keep  them  separate. 

But  if  this  doctrine  be  true,  it  is  supposed  that  there  can  be  no 
recovery  on  this  bill  in  the  name  of  Miller,  because  he  had  sold 
his  right  in  the  bill,  and  therefore  the  action  must  be  in  the  name 
of  his  assignee.  I  believe  the  case  of  Reed  and  Bainbridge,  ante 
351,  establishes  the  principle  that  under  our  statute  the  assignee 
of  a  bond  or  bill  must  bring  the  suit  in  his  own  name,  and  must 
not  bring  it  in  the  name  of  the  assignor.  But  this  can  apply 
only  to  bonds  and  bills  which  are  in  their  words  and  nature  as- 
signable. It  cannot  apply  to  bills  which,  like  the  present,  cannot 
be  assigned.  The  statute  does  not  alter  the  nature  of  the  instru- 
ment, nor  does  it  regulate  any  but  such  as  are  assignable,  (a)  If 
it  do,  then  no  suit  can  be  brought  upon  this  bill,  or  any  other  of 
a  like  character,  where  the  obligee  has  parted  with  his  right  to  it. 
This,  I  think,  is  not  so.  The  suit  may  always  be  brought  in  the 
name  of  the  person  to  whom  the  bill  is  payable,  but  for  the  use 
and  benefit  of  the  person  holding  the  interest  in  it.  Penn.  14®, 
463,  844,  965 ;  Ooxe  177.  In  the  present  case  I  consider  the 

(a)  Shcppard  v.  Stite»,  9  Hal.  90  ;  Sennington  Iron  Co.  v.  Rutherford,  S  Harr. 
158. 

*575 


678  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Hillman  v.  Hayden. 


action  rightly  brought  in  the  name  of  Miller,  Wandling  being 
stated  as  the  real  plaintiff  merely  for  the  purpose  of  showing  to- 
whom  the  money  was  coming. 

I  see  no  reason  why  the  judgment  should  be  reversed,  and  am 
for  affirmance. 


JAMES  HILLMAN  v.  BENJAMIN  HAYDEN,  JR. 

Appearance  and  trial  cure  adjournment  beyond  fifteen  days,  (a) 
On  certiorari. 

Several  reasons  were  urged  for  reversal  by  Wall,  for  plaintiff! 
The  most  important  are  noticed  by  the  court. 

KIRKPATRICK,  C.  J. 

Upon  the  return-day  of  the  summons,  which  was  on  the  llth 
of  August,  1818,  the  parties  appeared  and  agreed  to  adjourn  the 
cause  till  the  14th  of  September  then  next.  On  *the  12th  of  Sep- 
tember, two  days  before  the  day  of  adjournment,  and,  for  aught 
that  appears,  in  the  absence  of  the  defendant,  the  plaintiff  came 
and  demanded  a  jury,  and  it  was  granted  to  him  ;  whereupon,  says 
the  justice,  to  suit  my  own  convenience,  I  adjourned  the  trial  until 
the  16th  of  September,  being  more  than  fifteen  days  from  the  re- 
turn of  the  summons. 

It  is  now  offered  as  a  reason  for  the  reversal  of  this  judgment 

(a)  Ayres  v.  Swayze,  post  813 ;  Steward  v.  Sears,  7  Vr.  175,  and  cases  ther& 
cited  ;  for  other  irregularities  cured  by  appearance  and  trial,  see  Dare  v.  Og- 

den,  Coxe  91; v.  Campbell,  Coxe  92;  Aulen  v.  Bryan,  Penn.*lS4; 

McCollister  v.  Richmond,  Penn.  *208  ;  Johnson  v.  Cole,  Penn.  *266  ;  White  v. 
Lippincott,  Penn.  *266  ;  Walker  v.  Kearney,  *621 ;  Stediford  v.  Ferris,  1  South. 
109  ;  Bwld  v.  Marvin,  1  South.  248  ;  Howett  v.  Robertson,  1  Hal.  142 ;  Snedc- 
ker  v.  Quick,  6  Hal.  181 ;  Mural  v.  Hutchinson,  1  Harr.  46;  Neighbor  v.  Trim- 
mer, 1  Harr.  58 ;  Hunt  v.  Allen,  2  Zab.  533 ;  Houghton  v.  Potter,  3  Zab.  338  ,- 
Ayres  v.  Swayze,  post  812 ;  Allen  v.  Summit  Board  of  Health,  17  Vr.  102. 

*576 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  679 

Hill  man  t>.  Hay  den. 

that  this  adjournment  being  made  out  of  court,  for  a  day  more 
than  fifteen  days  from  the  return  of  the  summons,  and  without 
the  consent  of  the  parties,  was  unlawful.  And  simply  consid- 
ered, it  was  unlawful  for  all  these  causes.  But  it  is  to  be  ob- 
served that  in  this  case  both  parties  appeared  on  the  day  of  ad- 
journment and  voluntarily  went  into  the  trial  of  their  cause. 
This,  in  the  reason  of  the  thing,  as  well  as  in  the  spirit  of  the 
decisions  heretofore  made  upon  the  subject,  is  a  waiver  of  this 
objection ;  it  is  evidence  of  a  consent  to  the  adjournment,  though 
expressed  to  be  made  for  the  convenience  of  the  justice.  Could 
it  be  tolerated  that  the  plaintiff  should  appear,  call  his  jury,  ex- 
hibit his  demand,  go  to  trial,  examine  his  witnesses,  and  after  all, 
because  the  jury  did  not  gratify  him  in  their  verdict,  set  the 
whole  aside  upon  a  pretence  like  this  ?  I  think  not. 

The  other  reasons  assigned,  so  far  as  they  depend  upon  matter 
of  feet,  are  not  verified  by  the  record,  and  so  far  as  they  depend 
upon  matter  of  law,  are  not  supported  by  principle.  Therefore, 
let  the  judgment  be  affirmed. 

SOUTHARD,  J. 

The  summons  was  made  returnable  on  the  llth  of  August, 
1818,  on  which  day  the  parties  appeared  before  the  justice,  and 
agreed  to  adjourn  the  trial  of  the  cause  until  the  14th  of  Septem- 
ber then  next.  On  the  12th  day  of  September,  the  plaintiff 
appeared  and  demanded  a  venire,  which  was  granted ;  and  the 
justice,  on  that  day,  "  to  suit  his  own  convenience,"  adjourned 
the  cause  to  the  16th  of  that  .month,  without  the  consent  of  -the 
j)arties.  On  the  16th  the  parties  appeared,  and  the  trial  took 
place. 

This  adjournment  of  the  justice,  I  think,  was  erroneous.  After 
an  adjournment,  with  or  without  the  consent  of  parties,  which 
reaches  beyond  fifteen  days,  the  justice  has  no  power  to  adjourn 
of  his  own  motion,  or  on  the  application  of  one  only  of  the 
parties.  Penn.  $68,  266,  953. 

Judgment  affirmed. 


680  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Miller  v.  Colwell. 


*ELIPHALET  MILLER  v.  JOHN  COLWELL. 

Statute  of  limitations,  (a) 
On  certiorari. 

KlRKPATEICK,  C.  J. 

The  foundation  of  this  action  was  an  account  for  firewood, 
hay  &c.,  the  product  of  the  plaintiff's  farm,  and  not  an  account 
between  merchants.  Most  of  the  items  of  it  were  of  more  than 
six  years'  standing,  and  no  assumption  having  been  proved 
within  that  time,  the  defendant  set  up,  in  his  defence,  the  statute 
of  limitations,  and  requested  the  justice  to  charge  the  jury  that 
these  items  were  barred  by  the  said  statute.  The  justice,  how- 
ever, it  seems,  thought  the  law  to  be  different,  and  informed  the 
jury  that  if  any  one  item  of  the  account  was  within  six  years,  it 
took  the  whjole  out  of  the  statute.  In  this  opinion  he  erred,  and — 
Therefore  let  the  judgment  be  reversed. 


GIBSON  ASHCROFT,  ESQ.,  v.  ADRIEL  CLARK. 

1'.  Style  of  action.  (6) 

2.  Statute  of  frauds. 

3.  Consideration  of  promise,  (c) 

4.  Demand  $50,  and  trial  by  six  men.  (d) 

(a)  Franklin  v.  Camp,  Coxe  196;  Burnet  v.  Bryan,  1  Hal,  377 ;  Smith  v. 
Ruecastle,  2  Hal.  357 ;  Dancer  v.  Patterson,  5  Hal.  255;  Belles  v.  Belles,  7  Hal, 
339;   Gulick  ads.  Turnpike  Co.,  2  Or.  545;  Hibler  v.  Johnston,  3  Harr.  266; 
Conk  v.  Smith,  1  Vr.  394;  Thorpe  v.  Corwin,  Spen.  Sll. 

(b)  Stokes  v.  Coonis,  1  South.  159;  Pierson  v.  Pieman,  1  Hal.  163, 

(c)  Buckley  v.  Beardslee,  ante  570. 

(d)  See  Parker  v.  Munday,  Coxe  70 ;  Falkenburgh  v.  Cramer,  Coxe  31 ;  Me- 
Cormick  v.  Brookfidd,  1  South.  72;  Jones  v.  Oliver,  2  Hal.  123. 

*577 


2  SOI:TH.]          SEPTEMBER  TERM,  1819.  681 


Aahcroft  ?.  Clark. 


On  certioran. 
Chapnan,  attorney. 
Opinion  of  the  court. 

KlRKPATRICK,  C.  J. 

Upon  looking  into  the  transcript  and  proceedings  in  this  case, 
it  appears  that  the  justice  has  not  entered  in  his  docket  the  style 
of  action,  as,  by  the  statute,  he  is  required  to  do.  He  calls  it  an 
action  on  agreement  to  pay  money,  which  is  no  style  of  action 
known  in  the  law. 

It  appears,  further,  that  the  copy  of  account  filed  is  not 
.against  Gibson  Ashcroft,  the  defendant,  but  against  Robert 
Ashcroft;  that  the  principal  item  in  this  account  is  in  these 
words :  "  To  1  execution  granted  by  esqf.  R.  S.  Risley,  Deer.  10, 
1813,  for  the  sum  of  $28.43;  costs,  $1.05;  interest,  $7.04." 
Then,  at  the  bottom  of  the  account,  is  this  note :  "  The  above 
account  assumed  to  be  paid  by  Gibson  Asheroft,  Esq." 

This  is  altogether  irregular ;  the  entry  in  the  docket  is  wrong ; 
the  state  of  demand  is  insufficient ;  it  ought  to  have  shown 
against  *whom  the  execution  was,  and  how  Robert  Ashcroft 
l>ecame  liable  to  pay  it ;  and,  even  if  it  had  done  all  this,  it  does 
not  set  forth  how,  when  or  for  what  consideration  Gibson  Ash- 
croft, the  defendant,  assumed,  nor  any  other  circumstance  to 
.show  that  that  assumption  was  good  in  the  law,  or  in  any  way 
obligatory  upon  him. 

Besides  all  this  the  demand  is  for  $50,  and  the  trial  is  by  a 
jury  of  six  men. 

For  all  these  causes  let  the  judgment  be  reversed. 
*578 


682  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Price  v.  Summers. 


ROBERT  PRICE,  ESQ.,  v.  JACOB  SUMMERS,  assignee  &c.,  of 
DAVID  VAN  DOREN. 

Bond  given  to  person  injured  by  assault  and  battery,  to  make  satisfaction  and 
prevent  prosecution,  legal  and  valid,  (o) 


On  certiorari. 

KIRKPATRICK,  C.  J. 

It  appears  from  the  papers  sent  up  with  this  return  that  David 
Van  Doren,  the  assignor,  was  about  to  go  before  the  grand  jury 
to  make  complaint  against  Robert  Price,  the  plaintiff  here,  for 
an  assault  and  battery  which  he  alleged  he  had  made  upon  him  ; 
that  Price,  in  order  to  satisfy  Van  Doren  and  to  prevent  him 
from  making  his  complaint,  gave  him  his  obligation  for  $50 ; 
that  Van  Doren  assigned  this  obligation  to  Summers,  the  defend- 
ant here,  and  that  this  action  is  brought  upon  that  obligation. 

It  is  now  objected  that  this  obligation  is  for  an  unlawful  con- 
sideration, and,  therefore,  void ;  that  it  is  made  to  stifle  a  prose- 
cution for  an  offence  against  the  public  peace,  and  to  let  the 
guilty  escape  punishment. 

This  would  be  carrying  the  doctrine  too  far.  It  is  always 
lawful  to  make  satisfaction  for  a  direct  private  injury  of  this 
kind,  and  by  that  means  to  prevent  a  public  prosecution.  In- 
deed, even  after  the  prosecution  has  been  commenced,  if  satisfac- 
tion be  made  to  the  injured,  the  punishment,  generally,  will  be 
but  nominal.  To  prevent  a  prosecution  by  making  satisfaction 
to  the  injured,  and  to  suppress  a  prosecution  already  commenced 
by  bribing  the  witnesses,  are  wholly  different  things.  Let  the 
judgment  be  affirmed. 

SOUTHARD,  J.,  expressed  a  doubt  whether  the  bond  was  not 
void,  being  given  to  prevent  a  criminal  prosecution. 

Judgment  affirmed. 

(a  Den  v.  Moore,  ante  4?4;  Orover  v.  Bruere,  4  Hal.  819 ;  Whitenack  v. 
Ten  Eyek,  2  Or.  Oh.  2 49  ;  Owens  v.  Owens,  8  C.  E.  Or.  60  ;  Brittin  v.  Che- 
gary,  Spen.  625. 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  683 


Decker  v.  Hardin. 


*SAMUEL  DECKER,  JR.,  v.  JOSHUA  HARDIN. 

Deceit  in  the  transfer  of  a  note,  (a) 
On  certiorari. 

The  case  and  reasons  appear  in  the  opinion  of  tne  court. 
Wall  argued  for  plaintiff. 

KlRKPATRICK,  C.  J. 

This  was  an  action  on  the  case  for  a  deceit.  The  deceit 
complained  of  is,  that  the  defendant,  Decker,  had  become  pos- 
sessed of  a  certain  note  of  hand  given  by  one  Jacob  I.  Decker 
to  Joseph  Sharp,  or  order,  for  $75,  payable  in  six  months,  with 
interest;  that  this  note  had  been  assigned  by  Sharp  to  one 
Inglis,  to  be  recovered  at  his  own  risk,  but  had  not  been  assigned 
by  Inglis  either  to  the  said  defendant  or  to  any  other  person ; 
that  the  said  defendant,  Decker,  purchased  a  yoke  of  oxen  of 
the  said  plaintiff,  Hardin,  and  gave  him  this  note  in  payment  by 
merely  handing  it  over  to  him  without  endorsement,  averring  at 
the  same  time  that  it  was  a  good  and  valuable  note,  and  that 
Sharp  was  an  endorser  thereupon  and  was  answerable  for  the 
payment  of  the  money  ;  that  the  plaintiff  being  altogether  unable 
to  read  writing,  and  giving  full  faith  and  credit  to  the  averments 
of  the  defendant,  accepted  the  said  note  in  payment  for  the  said 
oxen  as  a  good  and  valuable  note,  secured  by  the  endorsement  of 
said  Sharp,  whereas  the  same  was  not  good  and  valuable,  nor 
secured  by  such  endorsement ;  and  so  that  the  said  defendant  will- 
fully and  designedly  deceived  him  &c.,  to  his  damage  &c. 

Upon  this  state  of.  demand  the  jury  found  a  verdict  for  the 
plaintiff  for  $79.84,  and  judgment  was  entered  accordingly. 

The  reasons  assigned  for  the  reversal  of  this  judgment  are — 
1.  Because  there  is  a  variance  between  the  summons  and  the 

(o)  See  Snydtr  v.  Findley,  Ooze  48,  78;  Lummis  v.  Stratton,  Penn.*SjS; 
Meeker  v.  Potter,  pott  5S6  ;  Byard  v.  Holmes,  5  Vr.  996. 

*579 


684  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Thomson  v.  Cook. 


state  of  demand  filed  ;  and,  2.  Because  the  state  of  demand  itself 
is  insufficient  to  support  an  action. 

The  first  of  these  reasons  is  not  true  in  fact ;  and  the  second, 
I  think,  is  not  true  in  law.  One  cannot,  by  falsehood  and  lies, 
deceive  an  illiterate  man,  impose  upon  him  a  writing  for  one 
thing,  when  it  really  is  another,  and  then  come  into  a  court  of 
justice  and  expect  to  receive  the  benefit  of  his  fraud. 

Therefore,  in  my  opinion,  this  judgment  must  be  affirmed. 


*THOMAS  THOMSON  v.  HENRY  COOK. 

Trover  by  tenant  in  common,  (a) 

On  certiorari. 
Opinion  of  the  court. 

KlRKPATRICK,  C.  J. 

This  is  an  action  of  trover  and  conversion  for  a  stage-wagon 
and  harness,  and  the  case  upon  the  trial  appears  to  be  this : 

Thomson,  the  defendant,  had  sold  the  wagon  and  harness  to 
one  Isaac  Kay  on  the  9th  of  August,  1817,  and  for  the  price 
thereof  had  received  certain  promissory  notes,  payable  at  stated 
periods,  with  approved  endorsers.  Kay,  two  or  three  weeks 
after  this,  sold  one-half  of  the  same  to  Cook,  the  plaintiff,  for 
$100,  to  be  paid  in  four  equal  payments  of  $25  each,  under  a 
special  agreement,  moreover,  entered  into  between  them  at  the 
time  of  the  sale  that  Cook  should  have  the  sole  and  exclusive 
possession  and  control  of  the  same,  together  with  the  horses  (of 

(a)  See  Chambers  v.  Hunt,  3  Harr.  339;  Hunt  v.  Chambers,  1  Zab.  620; 
Chambers  v.  Hunt,  2  Zab.  552 ;  Boston  v.  Morris,  1  Dutch.  173;  Halsted  v. 
Tyng,  3  C.  E.  Or.  375;  Suydam  v.  Combs,  3  Gr.  133 ;  Field  v.  Rank,  2  Zab. 

525. 

*580 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  685 


Thomson  r.  Cook. 


which  Kay  was  to  find  one  and  Cook  the  other),  to  be  used  as 
a  public  stage,  and  that  the  net  profits  thereof  should  be  equally 
divided  between  them ;  and  the  possession  of  the  said  stage 
and  harness  was  thereupon  by  the  said  Kay  immediately  de- 
livered over  to  the  said  Cook,  who  paid  the  first  payment  of  the 
purchase-money,  and  afterwards  regularly  paid  over  the  one-half 
of  the  net  proceeds  of  the  said  establishment  until  the  9th  of 
December,  1817,  when  Kay,  in  the  night-time,  and  without  his 
knowledge  or  consent,  took  the  said  wagon  and  harness  out  of 
his  enclosure,  where  it  was  usually  kept,  and  sold  it  to  Thomson, 
the  defendant,  he  at  the  same  time  being  well  apprised  of  the 
sale  of  the  one-half  thereof  to  the  said  Cook  as  aforesaid,  and  of 
the  bargain  as  to  the  mode  in  which  it  was  to  be  possessed  and 
used.  And  the  question  is  whether,  upon  this  case,  an  action  of 
trover  will  lie. 

The  objection  is  that  one  joint-tenant  or  tenant  in  common 
cannot  maintain  trover  against  his  co-tenant. 

And  it  is  in  the  general  true  that  if  two  persons  be  owners  of 
a  personal  chattel  one  of  them  cannot  maintain  trover  therefor, 
singly,  even  against  a  stranger,  and  much  less  against  his  part- 
ner, for  the  possession  is  joint.  But  in  this  case,  though  the 
ultimate  right  after  the  last  sale  may  have  belonged  to  Thomson 
*and  Cook  jointly,  yet  Cook,  by  the  previous  contract  with  Kay, 
had  a  special  property  subject  to  that  ultimate  right  which  neither 
Kay  nor  Thomson  could  at  pleasure  defeat,  and  he  had  also  an 
exclusive  possession  under  that  special  property  which  could 
lawfully  be  invaded  by  neither.  If  it  should  be  said  there  was 
no  time  fixed  by  the  contract  for  the  continuance  of  this  special 
property  and  this  exclusive  possession  which  Cook  was  to  have 
and  exercise  in  these  chattels,  the  answer  is  that  the  contract  in 
this  respect  was  for  the  benefit  of  Cook,  and  it  could  be,  there- 
fore, terminated  against  him  only  upon  his  failure  of  perform- 
ance on  his  part. 

Let  the  judgment,  therefore,  be  affirmed. 
*581 


686  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Oliver  v.  Howell. 


JON.  OLIVER  and  JNO.  TILLMAN  v.  JOSIAH  HOWELL. 

Suit  against  surety  in  recognizance  for  defendant's  appearance. 
On  certiorari. 

SOUTHARD,  J. 

Oliver  was  taken  upon  a  warrant  issued  by  Justice  Vanhorn, 
and  with  Tillman,  entered  into  a  recognizance  for  his  appearance 
at  a  future  day,  according  to  the  directions  of  the  statute.  Oliver 
did  not  appear  at  the  day,  and  the  plaintiff,  Howell,  refused  to 
proceed  to  try  his  cause,  but  suffered  a  nonsuit,  and  commenced 
this  action  against  Oliver  and  Tillman  on  the  recognizance.  The 
summons  was  returned  served  "  by  leaving  a  copy  with  the  wife 
of  John  Tillman,  one  of  the  defendants."  The  judgment  is 
against  both,  for  $35  debt,  and  $5.19  costs. 

Two  errors  appear  in  this  record.  1.  The  summons  was  served 
on  one  only  of  the  defendants;  the  judgment  is  against  both,  (a) 

2.  Howell  ought  to  have  tried  his  action  against  Oliver,  and 
obtained  judgment  against  him  before  he  brought  suit  on  the 
recognizance.  (6)  By  suffering  a  nonsuit,  he  precluded  himself 
from  his  action  against  the  defendant  and  his  bail.  See  Bloom. 

64  §  13. 

Judgment  reversed. 

(a)  Ford  v.  Munson,  1  South.  93. 

(b)  Graecen  v.  Allen,  2  Or.  74 ;  Oondit  v.  Baldwin,  4  Harr.  143  ;  Smalley  v. 
Vanarden,  post  811 ;   Cook  v.  Evans,  1  Harr.  177  ;  see  Camman  v.  Randolph,  2 
Hal  136. 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  687 


M'Eowen  v  Rose. 


*HENRY  M'EOWEN  v.  ANDREW  ROBE,  JR. 

In  covenant  by  vendee,  against  vendor,  for  lands  where  payment  was  to  be 
in  lawful  currency  of  New  Jersey,  plaintiff  may  prove  that  after  the  agree- 
ment and  before  the  day  of  payment,  defendant  agreed  to  receive  bank  bills, 
•which,  when  tendered,  he  refused,  (a) 


On  certiorari. 

The  only  reason  for  reversal  was  the  admission  of  improper 
evidence.  The  case  is  stated  by  the  court.  Vroom,  for  plaintiff 
in  certiorari.  Wall,  for  defendant. 

KlRKPATRICK,  C.  J. 

This  was  an  action  of  covenant  upon  articles  of  agreement  for 
the  sale  of  lands.  By  these  articles,  Rose,  the  plaintiff,  was  to 
pay  a  certain  part  of  the  purchase-money  upon  a  day  therein 
mentioned,  the  money  to  be  lawful  currency  of  New  Jersey.  A 
short  time  before  the  day  of  payment,  it  was  agreed  by  the  de- 
fendant, that  bank-bills  should  be  considered  as  lawful  currency 
of  Neio  Jersey,  and  be  received  as  such.  The  plaintiff  prepared 
the  bills  accordingly ;  but  when  the  day  of  payment  came,  the 
defendant  refused  to  receive  them,  alleging  that  they  were  not 
lawful  currency,  and  upon  that  pretence  refused,  also,  to  convey 
the  land.  The  plaintiff  then  brought  this  action,  and  upon  the 
trial  offered  evidence  of  these  facts,  which,  though  objected  to  by 
the  defendant,  was  admitted  by  the  justice,  and  thereupon  a  ver- 
dict was  rendered,  and  a  judgment  entered  for  the  plaintiff  for 

(o)  See  Perrine  v.  Cheeacman,  6  Hoi.  174;  Ford  v.  Campfield,  6  Hal.  3*7; 
Cox  T.  Bennett,  1  Or.  165;  JLavo  v.  Plume,  *  Harr.  467  ;  Vanhouten  v.  McOurly, 
3  Or.  Ck.  141 ;  Shinn  v.  Roberto,  Spen.  436;  Moore  v.  Moore,  COM  363; 
Stotesbury  v.  Vail,  2  Beat.  390;  Perry  v.  Oreen,  4  Harr.  61 ;  Long  V.  Hartvxll, 
5  Vr.  116 ;  but  see  Hogcncamp  v.  Ackerman,  4  Zab.  134  ;  Stryker  v.  Vander- 
bUi,  3  Dutch.  68;  AfcKifistry  v.  Hunk,  1  Beat.  60;  Orover  v.  Hwppock,*  Dutch. 
191. 

*582 


688  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


M'Eowen  v.  Rose. 


$80.     And  the  admission  of  this  evidence  is  the  ground  of  com- 
plaint against  this  judgment. 

It  is  true  that  in  an  action  of  covenant  upon  a  sealed  instru- 
ment, we  cannot  admit  evidence  of  a  subsequent  parol  agreement, 
substantially  changing  the  terms  of  the  covenant,  either  as  to  its 
nature  or  as  to  the  time  of  its  performance.  The  principal  reason 
given  for  this  is,  that  if  the  party  were  not  bound  to  rest  upon 
the  covenant  as  laid  in  the  declaration,  but  permitted  to  prove  an 
after  and  different  agreement,  the  defendant  would  have  no  notice 
of  that  which  he  was  called  upon  to  answer. 

But  it  would  be  going  very  far  to  apply  this  doctrine  in  a  case 
where  the  after-agreement,  if  it  can  be  called  an  after-agreement 
at  all,  is  merely  a  designation  of  the  kind  of  money  to  be  paid  in 
the  fulfillment  of  the  covenant.  It  would  be  especially  hard  in 
this  case,  where  the  words  of  the  covenant  are,  in  themselves, 
rather  ambiguous  upon  that  point,  and  might,  therefore,  well  be 
the  subject  of  explanation  between  the  parties.  Bank  bills,  at  the 
time  of  this  contract,  were  called  money,  were  received  as  *money> 
were  convertible  into  gold  and  silver  coin,  nay,  indeed,  were  pre- 
ferred to  coin,  as  every  day's  experience  at  the  counters  of  the 
banks  abundantly  testifies ;  they  were  the  universal  and  almost 
the  only  currency  in  New  Jersey.  The  defendant,  some  few  days 
before  the  time  of  payment,  explained  to  the  plaintiff  what  he 
intended  by  lawful  currency  of  New  Jersey,  and  expressly  told 
him  he  would  receive  these  bank  bills  as  such.  This  was  not  so 
much  a  new  agreement,  altering  the  terms  and  nature  of  the  cove- 
nant, as  an  explanation,  rendering  the  mode  of  performing  it 
more  easy  and  certain,  and  quite  as  beneficial  to  the  defendant 
himself.  The  plaintiff  was  to  pay  precisely  the  same  amount,  of 
the  same  value,  at  the  same  day,  and  in  fulfillment  of  the  same 
covenant.  Shall  the  defendant,  then,  after  having  made  this  ex- 
planation, and  after  the  plaintiff  had  prepared  these  bills,  be  at 
liberty  to  reject  them,  and  insist  upon  other  money  ?  Shall  he 
be  permitted  by  a  fetch  like  this,  totally  to  defeat  the  plaintiff 
of  the  benefit  of  his  covenant  ?  In  my  view  of  the  case  the 
justice  was  right  in  letting  in  the  proof  of  this  explanation  as 
to  the  money,  and  in  submitting  to  the  jury  whether,  under  all 

*583 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  689 


M'Eowen  v.  Rose. 


the  circumstances  of  the  case,  there  was  not  a  complete  perform- 
ance according  to  the  true  intent  of  the  covenant.  And  enter- 
taining this  view  of  it,  I  think  the  judgment  must  be  affirmed. 

SOUTHARD,  J. 

Tliis  was  an  action  brought  by  the  vendee  against  the  vendor 
for  not  performing  an  agreement  in  writing,  under  seal,  for  the 
.sale  of  certain  lands.  The  state  of  demand,  which  contains  all 
the  legal  requisites  for  such  a  case,  among  other  things,  sets  out 
that  the  plaintiff  was  to  pay  "  $20  per  acre  for  the  land,  the 
money  to  be  lawful  currency  of  the  state  of  New  Jersey,"  and 
that  it  was  to  be  paid  on  the  delivery  of  the  deed,  which  was 
to  be  delivered  on  a  day  stated  in  the  agreement.  At  the 
trial,  in  making  out  his  case,  the  plaintiff  offered  to  prove,  and 
although  objected  to,  was  permitted  to  prove, "  a  subsequent  agree- 
ment between  the  parties,  that  the  defendant,  about  two  weeks 
before  the  day  of  payment,  agreed  to  take  bank  bills  in  the  place 
of  lawful  currency  of  this  state." 

There  were  verdict  and  judgment  for  the  plaintiff  for  $80. 

The  only  question  raised  on  this  judgment  was  upon  the  com- 
petency of  the  evidence.  I  think  the  evidence  incompetent. 
The  *  plaintiff  was  bound  to  make  out,  by  proof,  the  case  which 
he  had  charged  in  his  state  of  demand.  And  in  order  to  sus- 
tain his  claim  he  was  also  bound  to  show  himself  ready,  at  the 
day,  to  perform  his  part  of  the  covenants.  To  show  this  readi- 
ness it  was  not  right  for  him  to  contradict  his  own  case,  and 
prove  that  defendant  had  agreed  to  accept  a  different  considera- 
tion from  the  one  stated  in  the  covenant  and  in  his  state  of  de- 
mand. The  evidence  was,  therefore,  I  apprehend,  inadmissible. 

Judgment  affirmed. 
*584  44 


690  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Manning  v.  Shotwell. 


WILLIAM  MANNING  v.  J.  SHOTWELL  and  others,  executors  of 
J.  SHOTWELL,  deceased. 

If  security  on  a  bill  give  notice  to  creditor  to  sue,  and  after  suit  brought 
creditor  discontinues  and  gives  principal  further  time,  and  after  this  the  prin- 
cipal fail,  the  security  is  still  bound,  (a) 


On  certiorari. 

The  action  below  was  brought  by  the  executors  of  Jacob  Shot- 
well  against  Elkanah  Drake  and  William  Manning,  upon  a 
sealed  bill,  dated  6th  of  July,  1814,  for  $92,  with  interest,  on 
which  some  payments  were  made  and  credited. 

On  the  return  of  the  summons  the  plaintiffs  filed  their  de- 
mand, and  one  of  the  defendants,  Manning,  "  verbally  denied 
the  demand." 

At  the  trial,  after  the  plaintiffs  had  rested  their  evidence,  the 
defendant  Manning  offered  to  prove  that  he  was  only  a  security 
on  the  bill ;  that  while  Drake,  the  principal,  was  in  good  circum- 
stances, and  after  the  note  was  due  and  payable,  he  (Manning) 
called  on  the  plaintiffs  and  told  them  that  he  was  only  security, 
and  that  they  must  prosecute  the  bill  or  he  would  stand  security 
no  longer ;  that  they  did  then  prosecute  the  bill  before  Justice 
Vermule,  when  Drake  applied  to  them  and  offered  to  pay  them 
$20  and  give  them  a  new  note,  with  other  security,  payable  in 
one  year ;  that  they  received  $15  from  Drake,  and  agreed  to  give 
him  further  time ;  that  this  was  done  without  the  knowledge  or 
consent  of  said  Manning ;  that  since  that  time,  to  wit,  on  the  18th 
of  June,  1819,  Drake  assigned  away  his  property  and  stopped 
payment ;  and  that  from  the  time  of  discontinuing  the  suit  before 

(a)  See  Pintard  v.  Davis,  Spen.  205,  1  Zab.  633  ;  Qrover  v.  Hoppock,  3  Dutch. 
191;  Mori-is  Caned  v.  Van  Vorst,  1  Zab.  100,  116;  Freehold  Banking  Co.  v. 
Brick,  Feb.  Term,  1875;  but  see  Bell  ads.  Martin,  3  Harr.  167;  Solomon  ads. 
Gregory,  4  Harr.  112 ;  Paulin  v.  Kaighn,  3  Dutch.  503,  5  Dutch.  501 ;  United 
States  v.  Howell,  4  Wash.  C.  C.  620  ;  Irick  v.  Black,  2  C.  E.  Or.  189  ;  Alwaler 
v.  Underhill,  7  C.  E.  Gr.  599  ;  Nightingale  ads.  Meginnis,  5  Vr.  461;  Thomp- 
son v.  Bourne,  10  Vr.  3. 


OUTIL]          SEPTEMBER  TERM,  1819.  691 

Manning  r.  Shotwell. 

Justice  Vermule  to  the  time  of  bringing  the  present  action  he 
had  paid  debts  to  a  considerable  amount.  *A11  which  evidence 
was  overruled  and  the  jury  found  a  verdict,  and  judgment  was 
rendered  against  both  defendants  for  $82.90. 

The  counsel  for  the  plaintiff  (Chetwood)  relied,  for  the  reversal 
of  the  judgment,  on  the  overruling  this  evidence  alone,  and  re- 
ferred to  7  Johns.  337  ;  10  Johns.  596. 

KlRKPATRICK,  C.  J. 

The  defence  in  this  case,  in  my  opinion,  is  wholly  insufficient 
in  the  law,  and  wholly  unsupported  by  any  case  or  principle  of 
decision  in  New  Jersey ;  therefore,  let  the  judgment  be  affirmed. 

ROSSELL,  J.,  was  of  the  same  opinion. 

SOUTHARD,  J. 

Upon  the  admissibility  of  this  evidence  it  is  proper  to  re- 
mark— 1.  That  no  difficulty  arises  from  the  mode  in  which  the 
defendant  Manning  pleaded.  In  the  court  in  which  he  was 
there  is  no  necessity  for  a  written  plea,  in  any  case,  except  where 
it  is  specially  pointed  out  by  the  statute.  If  the  defence,  there- 
fore, was.  a  good  one,  the  evidence  was  competent  under  the 
pleadings. 

2.  If  the  facts  offered  to  be  proved  are  sufficient  to  discharge 
the  security  from  a  liability  to  pay  a  sealed  bill,  he  had  a  right, 
in  that  court,  to  avail  himself  of  the  defence.     If  he  can  prove 
the  facts,  and  those  facts  discharged  him  from  the  debt,  th.»c 
facts  may  be  proved  in  an  ordinary  suit,  on  the  bill,  in  a  court 
of  law.     There  is  nothing  in  the  nature   or  character  of  the 
defence   which   requires   him  to  seek  protection  in  a  court  of 
equity. 

3.  The  facts  offered  to  be  proved  present  this  question  :    Can 
a  security  upon  a  sealed  instrument,  after  the  day  of  payment  is 
passed,  require  the  creditor  to  prosecute,  and  if  he  does  prose- 
cute, and  afterwards,  without  the  .knowledge  and  consent  of  the 
security,  alters  the  mode  and  extends  the  time  of  payment,  so 
that  the  principal  fails  and  security  is  thereby  injured,  will  he  be 

*585 


692  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Meeker  v.  Potter. 


discharged  ?  And  I  think  the  question  may  very  safely  be  an- 
swered in  the  affirmative.  The  rights  of  a  security  are  always 
favored.  He  is  bound  to  the  extent  of  his  undertaking,  but  no 
farther.  Neither  the  creditor,  the  principal,  the  court,  nor  any 
other  power,  can  carry  his  engagement  beyond  what  he  has  con- 
sented to.  A  new  contract  cannot  be  made  for  him  without  his 
consent.  It  is  true,  a  mere  delay  in  calling  on  his  principal  will 
not,  either  *at  law  or  equity,  discharge  him,  because  such  delay 
is  always  presumed  to  be  with  his  approbation,  unless  it  other- 
wise appears.  But  if  he  objects  to  the  delay,  if,  at  his  request, 
the  creditor  agrees  to  enforce  the  payment  and  commences  a  suit, 
he  onght  not  afterward  to  violate  the  agreement,  select  another 
day  and  mode  of  payment,  and  thus  create  a  new  contract  against 
his  will.  For  the  overruling  of  this  evidence,  therefore,  I  think 
the  judgment  should  be  reversed. 

Judgment  affirmed. 


ISAAC  MEEKER  v.  AMOS  POTTER,  JR.  (a) 

1.  State  of  demand. 

2.  Action,  case,  judgment,  debt. 

3.  Challenge  to  juror. 

4.  Interest  of  juror  and  witness. 


On  certiorari. 

Reasons  for  reversal,  argued  by  Vanarsdale  for  the  plaintiff. 
1.  The  action  was  case,  the  judgment  for  $48  debt.  2.  The 
action  should  have  been  debt  on  the  assigned  note.  3.  The  jus- 
tice refused  or  neglected  to  try  a  challenge  to  a  juror. 

KlRKPATRICK,  C.  J. 

The  state  of  demand  filed  in  this  case  contains  no  lawful  cause 
of  action.  It  merely  states  that  in  the  payment  of  a  debt,  the 

(a)  See  Decker  v.  Hardin,  ante  579. 

*586 


2  SOUTH.]  SEPTEMBER  TERM,  1819.  693 


Meeker  r.  Potter. 


defendant  let  the  plaintiff  have  two  notes  of  hand,  the  one  made 
by  one  Day,  for  $45,  and  the  other  by  one  Parsons,  for  §10, 
recommending  them  to  be  good  notes  and  of  futt  value,  and,  at  the 
game  time,  knowing  them  not  to  be  good.  Now,  what  is  meant  by 
good  and  of  futt  value,  is  wholly  uncertain.  The  most  natural 
< -.instruction  would  be  that  they  were  genuine,  and  that  the  whole 
sums  therein  expressed  were  due  and  unpaid ;  and  the  more  so, 
t)ccause  there  is  no  pretence  of  any  contract,  or  assumption,  or 
•warranty  as  to  the  solvency  of  the  makers.  This  state  of  de- 
mand, therefore,  is  in  itself  insufficient.  But  when  we  come  to 
inspect  the  papers  sent  up,  we  clearly  see  that  it  could  not,  with 
truth,  have  been  otherwise,  for  so  far  from  warranting  the  notes 
to  be  good  as  to  the  solvency  of  the  makers,  that  of  Day  is  as- 
signed under  the  express  condition  that  the  assignor  is  not  to 
stand  security  for  any  part  thereof.  And  the  plaintiff  having 
•taken  it  under  this  express  condition,  written  upon  the  note  itself, 
Jie  cannot  be  permitted  to  aver  the  contrary. 

*Besides  this,  the  contrivance  of  getting  Bonnel,  who  is  clearly 
proved  to  be  a  party  in  interest  in  his  representative  capacity  as 
administrator  of  Day,  and  that  in  the  face  of  the  defendant's 
challenge  to  be  both  a  juror  and  a  witness,  is  too  gross  to  be 
maintained  in  this  court. 

SOUTHARD,  J. 

This  certiorari  was  brought  to  reverse  a  judgment  in  favor  of 
Potter,  for  $48,  with  costs. 

The  state  of  demand  charges  that  Potter  sold  to  Meeker  a 
wagon  for  $65,  and  that  Meeker  paid  him  by  two  notes  of  hand 
which  he  fraudulently  and  knowingly  imposed  on  him  as  good 
and  of  full  value,  when  they  were  not  so,  the  persons  who  gave 
them  being  insolvent,  one  of  the  notes,  amounting  to  $48, 
having  been  given  to  Meeker  by  Charles  Day,  since  deceased, 
whose  estate  had  paid  only  five  and  three-quarters  cents  in  the 
dollar,  the  other  note  for  $10,  given  by  Jacob  S.  Parsons,  whose 
•estate  paid  only  onehalf  of  the  claims  against  him.  Potter,  there- 
fore, demands  $55,  the  deficiency,  as  he  alleges,  of  the  two  notes. 

The  note  executed  by  Charles  Day  accompanies  the  papers 

*587 


694  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Meeker  v.  Potter. 


sent  up  by  the  justice ;  and  on  it  is  found  an  endorsement  in  the 
following  words :  "  I  assign  the  within  note  to  Amos  Potter,  Jr., 
to  collect  of  the  heirs  of  Charles  Day,  deceased,  and  not  to  stand 
security  for  any  part  of  the  within  note.  Isaac  Meeker." 

By  the  transcript,  it  appears  that  Jonathan  C.  Bonnel,  the  ad- 
ministrator of  Charles  Bay,  deceased,  was  a  witness  and  juror ; 
and  by  an  amended  return  of  the  justice,  it  further  appears 
"  that  Meeker  made  objections  to  Bonnel,  when  the  jurors  were 
called  to  take  their  seats,  but  when  called  to  administer  the  oathr 
no  objection  was  made,  and,  therefore,  no  triers  were  sworn." 

At  the  same  time  that  the  rule  on  the  justice  for  an  amended 
return  was  taken,  another  was  granted  for  affidavits  to  prove  the 
interest  of  Bonnel  in  the  event  of  the  cause,  and  by  the  affida- 
vits taken,  it  sufficiently  appears  that  one-half  of  the  wagon  sold 
by  Potter  to  Meeker  belonged  to  him  as  the  administrator  of 
Charles  Day ;  that  Potter  acted  by  his  advice  in  making  the  con- 
tract, and  that  he  had  agreed  with  Potter  to  take  for  his  part  the 
same  pay  which  Potter  should  get  for  his. 

*  Vanarsdale,  of  counsel  with  Meeker,  the  plaintiff  in  certio- 
rari,  urged  several  reasons  for  a  reversal  of  the  judgment. 

1.  The  action  was  in  case  for  a  deceit,  the  judgment  for  <$4S- 
debt. 

A  conclusive  answer  to  this  reason  is  found  in  decisions  of 
this  court,  as  will  be  seen  by  referring  to  Cook  v.  Hendiickson, 
Perm.  3 43 ;  Carmichael  v.  Howel,  Penn.  375  ;  White  v.  McCall, 
Coxe  93.  In  all  which  cases  it  is  declared  that  the  word  debt 
may,  in  such  circumstances,  be  rejected  as  surplusage,  and  the 
judgment  affirmed. 

2.  The  action  should  have  been  founded  on  the  assignment  of 
the  note,  and  not  on  the  deceit  in  transferring  it.     It  is  answered 
that  fraud  in  assigning  or  transferring  a  note  may  be  the  founda- 
tion of  an  action ;  and,  in  the  present  instance,  if  the  plaintiff 
below  was  injured,  this  was  his  only  remedy.     The  character  of 
the  assignment  precludes  any  action  upon  it. 

3.  The  challenge  to  Bonnel  ought  to  have  been  received  and 
tried. 

*588 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  095 


Den  v.  Vancleve. 


It  is  apparent  that  the  interest  of  Bonnel,  as  administrator  of 
Day,  was  sufficient  to  exclude  him  as  a  juror.  The  challenge, 
too,  was  abundantly  made,  and  should  have  been  tried.  A  party 
is  not  obliged  to  tender  his  challenge  twice,  but  when  once  pre- 
sented, the  court  should  try  it,  unless  it  is  explicitly  waivt  <1. 
There  is  something  not  a  little  extraordinary  in  the  appearance 
of  this  part  of  the  case.  Day  owned  half  the  wagon ;  it  was  sold, 
and  Day's  note  taken  in  payment.  His  administrator,  who  pays 
one-twentieth  of  his  debts,  and  of  course  this  note  among  the 
rest,  becomes  a  witness  and  juror,  to  effect  the  recovery  of  the 
balance  of  the  note  from  the  payee,  who  had  bought  Day's 
property  with  it.  What  becomes  of  this  balance,  if  recovered? 
There  is  an  appearance  of  fraud  as  well  as  interest  in  this  matter, 
though  it  is,  perhaps,  only  in  appearance,  and  arises  from  the 
manner  in  which  the  case  is  presented  before  the  court.  I  am 
for  a  reversal. 

Judgment  reversed. 


*DEN  v.  JOSEPH  VANCLEVE. 

1.  Ejectment;  trial  at  bar,  by  special  jury;  verdict  for  defendant;  and  mo- 
tion for  new  trial,  (a) 

2.  Testamentary  capacity,  (b) 

3.  Examination  on  roi'r  dire  of  a  witness,  touching  his  discretion  and  knowl- 
edge, (c) 

4.  Declarations  of  testator,  of  his  intentions  respecting  his  will ;  evidence 
on  question  of  capacity  and  fraud,  (d) 


In  ejectment. 

This  action  was  tried  by  a  struck  jury,  at  bar,  in  November 
term,  A.  D.  1818,  before  the  chief-justice  and  Justice  Southard, 
Rossell,  J.,  not  sitting.  There  was  verdict  for  the  defendant. 
Rule  to  show  cause  why  the  verdict  should  not  be  set  aside  was 

(a)  See  cases  cited  post  651. 

(b)  See  cases  cited  pott  660. 

(c)  See  cases  cited  post  658. 

(d)  See  cases  cited  po.it  €.54. 

*589 


696  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


granted  at  that  term,  and  argument  had  at  February  term,  1819. 
At  September  term,  1819,  the  judgment  of  the  court  was  pro- 
nounced. 

At  the  trial,  R.  Stockton  was  attorney,  Wall  and  R.  Stockton, 
Jr.,  of  counsel  with  the  plaintiff.  L.  H.  Stockton,  attorney, 
Ewing  and  the  Attorney-General,  of  counsel  with  the  defendant. 

The  declaration  in  ejectment  contains  two  counts.  The  first 
is  on  the  demise  of  Israel  Clarke  and  wife,  for  one-third  part  of 
two  hundred  acres  of  land,  in  the  township  of  Lawrence ;  the 
other  on  the  demise  of  John  Stevens  and  wife,  for  one  other 
third  part. 

R.  Stockton,  in  opening  for  the  plaintiff,  stated  that  he  would 
prove  that  Benjamin  Vancleve  died  seized  of  the  premises ;  that 
he  had  had  one  son,  John,  now  dead,  who  was  advanced  in  his 
father's  lifetime,  so  that  his  children  had  no  claim  to  this  estate ; 
that  the  remaining  children  of  said  Vancleve  were  the  defendant, 
oid  the  two  female  lessors,  who  each  claimed  one-third  of  said 
premises. 

The  plaintiff  called  Major  John  Phillips,  who  testified  to  an 
intimate  acquaintance  with  Benjamin  Vancleve  for  fifty  years, 
during  which  time  he  lived  on,  claimed  and  possessed,  as  owner, 
the  premises  in  question,  containing  between  two  hundred  and 
sixty  and  three  hundred  acres.  He  had  five  children — Cor- 
nelia, wife  of  Thomas  Stevens,  who  died  without  issue ;  John, 
who  died,  leaving  children;  Phebe,  one  of  the  lessors,  who 
married  John  Stevens  thirty-one  or  thirty-two  years  ago,  and 
has  no  children  ;  Elizabeth,  another  lessor,  who  seven  or  eight 
years  since  married  Dr.  Israel  Clarke ;  and  the  defendant,  Joseph. 
He  left  no  personal  property,  though  he  once  owned  a  pretty 
large  one.  The  defendant  lived  with  him  about  twenty  years, 
and  managed  and  worked  the  farm  and  improved  it  with  fences. 
The  defendant  married  and  brought  his  wife  there  fifteen  or 
sixteen  years  ago,  and  had  no  visible  property  except  what  he 
got  off  the  place.  At  Benjamin  Vancleve's  death,  and  *before 
that  time,  defendant  owned  the  personal  property  on  the  farm. 
Plaintiff  here  rested. 

*590 


2  SOUTH.]          SEPTEMBEB  TKli.M,  1819.  697 


Den  t.  Vancleve. 


L.  H.  Stockton,  for  defendant,  stated  that  he  claimed  the  prem- 
ises under  a  will  of  Benjamin  Vancleve,  bearing  date  August 
l>lth,  1817.  This  will  was,  in  this  respect,  the  same  as  two 
others  which  he  had  made— one  in  1809,  the  other  in  1814,  and 
\\  liirh  were  improperly  taken  from  his  desk  a  short  time  before 
the  execution  of  the  last,  and  the  circumstances  strongly  showed 
that  one  of  the  lessors  took  them.  The  testator's  reasons  for 
giving  his  lands  to  the  defendant  were,  that  he  had  advanced  as 
much  to  his  other  son ;  that  his  daughters  had  received  a  consid- 
erable sum,  were  well  married,  and  from  their  situation  did  not 
need  more  ;  and  that  defendant  had  long  lived  with  and  assisted 
him,  and  worked  on  and  improved  the  farm. 

Evidence  of  the  defendant. 

Deposition  of  John  Phares,  one  of  the  subscribing  witnesses, 
taken  by  Justice  Southard,  under  the  statute,  on  May  22d,  1818, 
was  read,  Phares  being  dead.  He  had  known  the  testator,  by 
sight,  for  twenty  years,  and  very  familiarly  for  seven  or  eight 
last  past.  The  will  was  executed  about  ten  o'clock  on  Sunday 
morning,  the  day  that  it  bears  date.  It  was  read  to  the  testator 
by  the  defendant  audibly  and  distinctly,  and  being  asked  if  it 
was  his  will,  and  a  true  copy  of  a  former  will  which  he  had 
made,  and  which  was  missing,  he  answered  to  both  questions, 
"  Yes,  it  was."  With  the  pen  in  his  hand,  and  in  the  presence 
of  the  subscribing  witnesses,  and  with  the  aid  of  deponent,  who, 
at  his  request,  steadied  his  hand,  he  wrote  the  name,  Benjamin 
Vancleve,  to  the  will.  Deponent  asked  him  if  he  acknowledged 
that  to  be  his  last  will,  and  he  then  took  hold  of  the  paper,  and 
laying  his  fingers  on  the  name  and  seal,  he  replied,  "  Yes,"  in  a 
low  tone  of  voice,  and  then  raising  his  voice  he  said,  "  Yes,  I  do." 
Tlie  witnesses  signed  in  presence  of  the  testator  and  of  each 
other,  no  other  person  being  present  except  defendant's  family. 
Testator  paid  very  great  attention  to  the  reading  of  the  will  and 
to  the  whole  transaction ;  and  deponent  then  thought  and  be- 
lieved, and  still  continued  to  think  and  believe,  that  he  was  in 
pooocooion  of  his  reasonable  faculties  and  understood  everything 
that  was  proposed  to  him  very  well,  as  well  as  a  man  could  in  a 
weak  state,  and  the  more  deponent  thought  and  reflected  on  the 


698  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


subject,  the  *raore  he  was  satisfied  that  testator  understood  very 
well  what  was  proposed  to  him  and  what  he  was  doing.  On 
the  cross-examination  deponent  stated  that  he  was  sent  for  by 
defendant,  his  wife  having  been  there  some  time  before  him. 
The  testator  then  was,  and  continued  through  the  greater  part  of 
the  day,  more  revived  than  for  three  or  four  weeks  before.  De- 
ponent conversed  with  him  that  morning  only  about  the  will, 
and  that  not  after  it  was  executed.  He  could  only  speak  two  or 
three  words  at  a  time,  and  only  answered  questions.  Deponent 
could  not  recollect  whether  he  called  him  by  name,  though  he 
frequently  did,  and  on  that  day  took  him  by  the  hand  as  usual. 
Within  four  or  five  weeks  preceding,  deponent  saw  him  fre- 
quently, but  had  little  conversation  with  him.  He  always  lay 
in  bed  in  an  easy,  sleepy  kind  of  way ;  one  side  of  him  was 
helpless.  But  within  that  time  he  asked  deponent  many  ques- 
tions, principally  about  deponent's  family,  and  a  dispute  respect- 
ing a  line  which,  at  that  time,  existed  between  deponent  and  his 
neighbor,  Mr.  Andrew  Reeder.  Deponent  replied  fully  to  his 
questions  and  the  conversation  soon  ended.  At  the  time  of  exe- 
cuting the  will  he  was  not  in  a  situation  to  dispose  of  his  prop- 
erty by  deed,  and  too  weak  to  dictate  and  form  a  whole  will  at 
one  time,  but  was  capable  of  remembering  what  he  had  done  at 
former  times  and  what  disposition  he  then  wished  made  of  his 
property.  When  the  will  was  read  over  to  him,  section  by  sec- 
tion, he  assented  to  it  and  sanctioned  it  with  as  much  freedom 
and  fortitude  as  he  could  have  done  at  any  former  time,  and  more 
so  than  at  any  time  within  four  or  five  weeks.  His  mind  was 
equal  to  what  he  did.  He  had  strength  of  mind  to  direct  the 
disposition  of  his  property  if  propositions  were  made  to  him, 
but  was  too  weak  to  converse  about  it  or  dictate  it  wholly  him- 
self at  one  time.  Defendant  filled  up  the  date  of  the  will  before 
it  was  executed. 

Mehetable  Phares,  wife  of  John  Phares,  also  a  subscribing 
witness,  saw  the  testator  and  subscribing  witnesses  sign  the  will 
in  the  presence  of  each  other,  during  church -time,  on  the  day  on 
which  it  bears  date.  Defendant  mentioned  to  testator  that  his 
wills  were  missing.  He  roused  up,  as  from  a  deep  sleep,  and 

*591 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  699 


Den  t>.  Vancleve. 


asked  who  took  them.  Defendant  replied,  "  Some  of  his  children, 
he  expected."  Defendant  told  him  there  was  a  copy  written  by 
Mr.  Kwing,  and  asked  if  he  wished  to  execute  it.  He  said  "  Yes, 
he  did."  Phares  was  sent  for ;  Johnson  was  in  the  house.  De- 
fendant *read  the  will  over  distinctly  to  testator,  and  as  he  went 
along  asked  him  if  he  understood  it ;  he  paid  very  particular  at- 
tention to  every  part  of  it,  and  answered  "  Yes,  very  well."  Do- 
t'ni'hint  asked  if  it  was  a  copy  of  the  former  will  he  had  made  in 
1814  ;  he  answered  "  Yes,  it  was."  He  was  asked  if  he  should 
be  lifted  up  in  the  bed  to  execute  it,  but  his  answer  was  not  re- 
collected. Mr.  Phares  asked  him  if  he  should  steady  his  hand ; 
he  said,  "Yes,"  and  Mr.  Phares  did  so  by  putting  his  hand  Jtack 
of  testator's.  He  put  his  finger  on  the  seal  without  being  directed 
to  do  so,  or  where  he  should  put  it ;  and  when  he  acknowledged 
it,  witness,  from  her  situation  and  being  a  little  deaf,  did  not  hear 
all  he  said,  but  moving  round  a  little  nearer  to  him  she  heard 
him  say  "  last  will  and  testament."  He  appeared  to  be  of  sound 
and  disposing  mind  and  memory,  and  capable  of  making  a  will 
or  deed  disposing  of  his  land,  and  understanding  what  he  was 
doing  and  knowing  whether  he  was  satisfied  with  it,  though  not 
capable,  from  his  speech  faltering  and  from  the  weakness  of  his 
body,  of  expressing  or  dictating  it  all  at  one  time.  He  knew 
what  his  property  was,  and  if  the  will  had  described  it  wrong  or 
given  it  to  an  improper  person  he  would  at  once  have  detected  it 
and  refused  to  sign  it.  On  that  day  witness  was  going  to  church, 
and  called  at  the  door,  and  was  requested  by  Mrs.  Vancleve  to 
come  in,  as  her  father  was  not  quite  so  well ;  his  hands  and  feet 
were  cold,  and  she  was  alone.  Defendant  said  if  she  called  after 
church  it  would  be  sufficient.  Witness  went  into  testator's  room 
but  did  not  speak  to  him,  as  he  lay  as  if  asleep;  but  she  told 
Mrs.  Vancleve  that  she  need  not  be  alarmed — the  coldness  of  his 
hands  and  feet  arose  from  the  change  of  weather.  He  had  been 
struck  with  the  palsy  in  April  or  May  preceding,  and  from  that 
time  his  right  side  had  been  helpless,  so  that  he  lay  all  the  time 
in  bed.  He  wrote  his  name  with  his  left  hand.  Witness  <li«l 
not  recollect  that  the  family  called  on  their  neighbors,  except 
herself  and  husband,  to  sit  all  night  with  him,  until  a  few  days 

*592 


700  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


before  his  death.  She  staid  with  him  four  or  five  times  before 
the  will  was  executed,  and  being  a  near  neighbor,  living  within 
a  quarter  of  a  mile  on  an  adjoining  farm,  and  often  seeing  him, 
she  could  understand  very  well  what  he  said,  though  his  voice 
faltered,  and  at  some  times  more  than  others.  Though  he  did 
not,  perhaps,  speak  twenty  words  together  after  he  was  palsied, 
yet  he  often  spoke  to  witness,  inquired  for  her  family  and  Mr. 
Smith's,  and  asked  about  the  dispute  re*specting  a  line  between 
Phares  and  Reeder.  He  asked  for  drink  when  he  wanted  it, 
except  the  last  part  of  his  illness,  when  he  generally  motioned 
for  it.  He  knew  witness  both  by  day  and  night,  and  once,  in 
the  night,  seeing  some  person  in  the  other  bed,  asked  who  it  was. 
Witness  told  him  it  was  Mr.  Phares.  He  then  inquired  for  de 
fendant  and  was  informed  that  he  had  gone  to  bed.  On  the  day 
the  will  was  executed  witness  did  not  hear  him  say  anything  ex- 
cept what  is  detailed  in  relation  to  the  execution  of  the  will.  In 
the  afternoon  of  that  day  witness  sat  on  the  opposite  side  of  the 
room,  defendant  sat  on  the  bed,  and  testator  had  his  well  arm 
around  defendant's  neck;  his  lips  moved,  and  he  seemed  to  have 
a  long  conversation  with  defendant.  Witness  sat  up  that  night 
with  him,  and  no  one  that  day  or  night  thought  that  he  was 
dying.  He  died  on  the  Saturday  following.  John  Phares  was 
in  daily  expectation  of  death  when  his  deposition  was  taken, 
and  died  on  the  fourth  day  after.  Johnson,  the  other  witness, 
was  in  defendant's  employ  at  the  time. 

Stephen  Johnson,  on  the  day  the  will  was  executed,  was  pass- 
ing, with  a  bundle  in  his  hand,  by  defendant's,  from  New  York 
to  Philadelphia.  Defendant  asked  him  if  he  would  hire — that 
his  hired  man  had  gone  away  without  leave.  He  assented,  and 
defendant  requested  him  to  go  in  and  they  would  see  more  about 
it.  He  went  in  and  ate  his  breakfast,  and  an  hour  or  two  after- 
wards defendant's  daughter  told  him  to  come  into  the  room  where 
testator  was.  When  he  came  in  defendant  or  his  wife  told  him 
to  come  near  and  take  notice  what  was  said.  There  saw  testator 
and  witnesses  all  sign  the  will  in  the.  presence  of  each  other. 
He' laid  his  hand  on  the  seal  without  direction  from  any  person 
and  said  he  acknowledged  it  to  be  his  last  will  and  testament. 

'•593 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  701 


Den  v.  Vancleve. 


Witness  never  saw  him  except  at  that  time,  perhaps  for  half  an 
hour ;  but  he  believed  him  to  know  well  enough  what  he  was 
about,  and  to  be  sound  enough,  as  to  his  understanding,  to  make 
a  will.  He  lay  on  the  bed,  and  as  witness  went  in  defendant 
told  him  his  wills  had  been  taken  out  of  the  house.  Testator 
asked  who  by.  Defendant  said  he  supposed  by  some  of  his 
children.  Defendant  then  said  there  was  a  copy  written  by  Mr. 
Ewing,  and  asked  if  he  wished  to  execute  that.  He  replied 
"  Yes."  Defendant  asked  him  if  he  should  read  it  to  him.  He 
said  "  Yes."  Defendant  read  it  and  asked  if  he  was  sensible  it 
was  a  true  copy  of  the  will  he  had  formerly  executed.  He  said 
"  Yes."  *Defendant  told  him  to  speak  out  so  that  the  people 
could  hear  him.  He  exerted  himself  and  said  "  Yes,  I  say  so." 
Phares  asked  if  he  should  guide  his  hand.  He  reached  out  his 
hand  for  the  pen  ;  it  was  delivered  to  him,  and  Phares  steadied 
his  hand.  Either  Phares  or  the  defendant — witness  thought 
Phares — told  him  it  was  necessary  he  should  acknowledge  it  to 
be  his  last  will  and  testament.  He  then  reached  out  his  left 
hand,  put  his  two  fingers  on  the  seal,  and  said  "  I  acknowledge 
this  to  be  my  last  will  and  testament."  A  person  standing  near 
could  hear  him  distinctly  and  understand  him,  though  he  spoke 
weak  and  low.  After  he  had  done,  he  seemed  satisfied,  reached 
out  his  hand  and  took  hold  of  Mr.  Phares's  hand,  and  witness 
left  the  ropm.  It  was  about  eleven  o'clock.  The  next  morning 
defendant  told  witness  that  his  hired  man,  whose  name  was  Per- 
rine  Castner,  had  returned  and  satisfied  him  about  his  going 
away,  and  he  was  disposed  to  keep  him,  and  witness  could  go. 
Witness  went  on  to  Trenton,  boarded  at  Atkinson's,  worked  at 
General  Wilson's  house  and  stayed  about  two  months,  >ince 
which  time  he  has  resided  in  Philadelphia.  While  at  work  at 
General  Wilson's  he  asked  witness  about  the  execution  of  the 
will,  but  witness  gave  him  slighty  answers  and  said  little  about 
it,  and  has  had  no  conversation  with  defendant  about  it,  except 
to  tell  him  what  he  remembered.  Witness  was  poor  and  about 
twenty-three  years  old,  and  lodged  at  defendant's  since  he  came 
up  to  give  evidence,  about  a  week  before. 

Here  the  will  was  read  to  the  jury.     It  devised  all  testator's 

*594 


702  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


real  estate  to  the  defendant  and  left  the  two  female  lessors  each 
$200,  upon  condition  that  they  would  release  their  right  to  cer- 
tain lands  in  Monmouth  which  had  belonged  to  their  mother, 
and  which  testator  had  sold. 
Defendant  rested  his  evidence. 

R.  StocJcton,  for  the  plaintiff,  staled  that  he  did  not  consider 
the  will  sufficiently  proved.  It  has  been  executed  upon  a  repre- 
sentation of  the  defendant  that  the  testator's  wills  had  been 
stolen,  and  was  done  merely  by  question  and  answer,  indicating 
no  volition  or  intelligence.  But  the  plaintiff  would  show  still 
further  that  the  testator  had  long  lived  with  the  defendant,  at 
his  table  and  under  his  control,  and  had  been  so  treated  and  gov- 
erned by  him  as  to  be  in  fear  of  him  ;  that  in  the  April  pre- 
ceding he  *had  been  struck  with  the  palsy  and  from  that  moment 
had  been  incapable  of  making  a  will,  or  doing  any  act  which  re- 
quired mind ;  that  he  could  not  speak  nor  move,  and  lay  insen- 
sible, the  mere  instrument  of  any  person  who  chose  to  direct  him 
what  to  do ;  and  that,  under  these  circumstances,  the  defendant 
improperly  and  fraudulently  imposed  upon  him  a  will,  not  his 
own,  which  he  would  not  have  made,  to  which  he  was  incapable 
of  assenting,  and  which  was  the  defendant's  own  contrivance. 

Evidence  for  the  plaintiff. 

Andrew  Reeder's  deposition  had  been  taken  de  bene  esse,  and 
he  being  still  very  sick,  it  was  read,  and  stated,  in  substance,  that 
he  knew  testator,  intimately,  for  many  years,  while  in  full  vigor 
of  his  bodily  and  mental  powers,  and  until  his  death.  In  1814, 
deponent  witnessed  a  will  executed  by  him,  and  although  he  had 
then  failed  somewhat  as  to  his  memory  more  than  his  under- 
standing, he  might  be  considered  of  a  disposing  mind.  At  that 
period  the  news  from  Europe  was  interesting,  and  he  was 
anxious  always  to  get  his  papers,  and  would  talk  of  the  news, 
quote  passages  pretty  correctly,  and  knew  market  prices  tolerably 
well.  He  was  tolerably  conversable  and  pleasant  in  conversa- 
tion ;  but  some  doubt  existed  on  deponent's  mind  as  to  the  pro- 
priety of  his  making  a  will,  arising  from  the  situation  in  which 
he  lived  with  his  son  on  his  own  place,  coming  to  his  son's  table 

*595 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  703 


Den  v.  Vancleve. 


for  his  meals,  and  drawing  nothing  from  his  farm,  and  the 
advantages  his  son  enjoyed,  but  his  living ;  and  he  seemed  entirely 
under  the  sovereignty  and  control  of  his  son.  His  body,  too,  had 
failed  considerably ;  and  the  doubts  which  deponent  felt  were 
perhaps  increased  by  his  having  an  attack  soon  after,  which  very 
much  weakened  his  body,  and  made  one  side  lame  ;  and  his  mind 
very  evidently  failed  along  with  his  body  very  rapidly.  But 
deponent,  on  reflecting  on  the  whole  circumstances,  made  up  his 
mind  to  say  that  at  the  time  of  making  that  will,  in  1814,  he 
was  of  a  disposing  mind.  A  few  days  after  the  will  was  signed, 
the  defendant  called  at  deponent's,  and  they  had  a  conversation 
on  the  subject,  which  increased  deponent's  doubts.  Defendant 
asked  deponent  if  his  father  had  not  been  to  sign  a  will  before 
deponent  as  a  witness.  Deponent  told  him  he  had.  Defendant 
then  asked  if  he  did  not  think  his  father  had  a  mind  fit  to  make 
a  will.  Deponent  replied  that  he  had  made  up  his  mind  that 
that  was  the  case  when  he  signed  as  a  witness.  Defendant  then 
said  he  ex*pected  that  his  brother-in-law  and  sisters  would  con- 
test the  will ;  that  he  had,  a  few  days  before  the  will  was  made, 
been  talking  to  Major  Stevens  about  some  old  man  whose  will 
was  contested ;  and  the  major  remarked  to  him  that  his  father 
was  not  fit  to  make  a  will,  and  his  would  be  disputed,  if  he 
should  make  one.  Defendant  added  that  he  knew  that  his  father's 
head  was  fuddled,  and  his  memory  had  failed  a  good  deal,  but 
he  attributed  it  to  the  immoderate  use  of  tobacco,  and  he  had 
taken  him  to  town  to  get  a  lawyer  to  draw  the  will,  and  had 
kept  him  from  tobacco  for  two  or  three  days,  that  his  head  might 
be  clear,  and  he  might  be  able  to  copy  the  will ;  that  its  being  in 
his  own  handwriting  would  be  very  much  in  his  favor ;  that  he 
intended  to  do  all  he  could  to  support  it ;  and  if  he  could  not,  and 
they  should  succeed  in  destroying  it,  he  would  set  up  the  former 
one  that  he  had  made,  which  would  be  better  than  not  having 
any ;  that  if  he  set  up  the  former  will,  he  should  lose  the  benefit 
of  a  provision  which  he  thought  a  good  deal  of,  respecting  the 
land  sold  by  his  father  in  Monmouth ;  that  his  father  owned 
land  there  in  right  of  his  wife,  and  not  knowing  the  law  on  the 
subject,  had  sold  it,  and  became  uneasy  lest  his  daughters  should 

*596 


704  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


claim  it.  He  intended  that  the  legacies  to  his  daughters  should 
be  held  back,  and  not  paid,  until  they  released  their  right  to  that 
land.  After  the  signing  of  this  will,  Benjamin  Vaneleve's  mind 
failed  rapidly,  until,  in  a  year,  or  perhaps  less  time,  it  was  very 
feeble.  He  was  very  talkative,  and  his  son  seemed  to  pay  no 
attention  to  him,  and  sometimes  would  tell  deponent  not  to  mind 
him,  and  that  he  did  not  know  what  he  was  talking  about.  His 
conversation  was  very  foolish,  and  had  no  sense  in  it.  About  a 
year  or  fifteen  months  before  his  death,  Benjamin  Vancleve  was 
speaking  of  his  age  to  deponent,  and  said  that  "  he  was  sixty- 
seven  or  seventy-seven/'  in  an  indifferent  kind  of  way,  as  if  it 
was  a  matter  of  little  importance,  like  a  day  or  a  week. 

Deponent  recollects  no  other  incident  of  importance,  until, 
about  four  or  five  weeks  before  his  death,  he  heard  that  Benja- 
min Vancleve  was  taken  down  to  his  bed  by  a  stroke  of  the 
palsy,  and  meeting  defendant  at  a  burial,  he  asked  him  how  his 
father  was.  He  replied  that  he  was  very  much  as  he  had  been, 
but  was  failing  more,  and  growing  weaker.  Deponent  asked  if 
he  had  recovered  his  mind  and  reason.  Joseph  replied  that  he 
did  not  know  that  he  had  lost  his  mind  and  reason  in  fact ;  that 
*  he  did  not  talk  any,  but  when  he  wanted  anything,  he  seemed 
to  know  about  it,  and  to  make  them  understand  his  wants  by 
signs  and  motions.  Deponent  said,  "Then  he  can't  talk  any  yet  ?  " 
Joseph  replied  that  he  did  not  know  whether  he  could  not,  or 
whether  it  was  because  he  had  no  disposition  to  talk.  Deponent 
did  not  exactly  understand  what  Joseph  meant — whether  it  was 
that  he  was  so  feeble  that  he  felt  no  inclination  to  speak,  or 
whether  he  was  a  little  obstinate.  About  three  weeks  before  his 
death,  deponent  went  to  the  house  to  see  him,  and  being  shown 
to  his  room,  went  up  to  his  bedside,  spoke  to  him  and  asked  him 
how  he  did.  He  rolled  his  eyes  up  to  deponent  with  a  wild,  ex- 
pressive kind  of  look,  and  his  lips  moved  very  fast  and  seemed 
agitated,  as  if  he  wanted  to  speak  and  say  something  to  depo- 
nent, but  no  words  or  sound  of  any  kind  came  out  of  his  mouth. 
Deponent  stood  about  a  minute  by  him ;  he  said  nothing,  and 
then  deponent  left  him  and  sat  down  in  the  room.  About  half 
an  hour  after,  deponent  got  up  to  go  away  and  bid  him  farewell. 

*597 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  705 


Den  t.  Vancleve. 


His  eyes  and  lips  looked  and  moved  as  they  did  when  deponent 
came  in  and  spoke  to  him,  but  he  did  not  say  anything,  and  de- 
ponent then  left  him.  Deponent  saw  him  no  more  after  this. 
A  few  days  after  his  burial,  defendant  came  by  deponent's  house, 
and  seeing  deponent  at  a  little  distance,  called  him  to  the  road 
and  said  to  him,  "  Have  you  heard  what  has  taken  place  in  our 
family  ?  father's  will  was  lost — somebody  took  it  away ; "  and 
added  that  his  sister,  Mrs.  Stevens,  must  have  stolen  it ;  that  he 
discovered  it  the  Sunday  before  his  death,  and  went  up  to  his 
father's  bedside,  and  in  a  loud  tone  of  voice  said  to  him,  "  Father, 
somebody  has  robbed  the  house."  It  seemed  to  startle  him  very 
much,  and  with  a  considerable  struggle,  he  said,  "  Who,  who, 
who?"  though  he  had  not  spoken  for  some  time  before,  and 
raised  himself  up,  stretched  out  his  well  hand  and  pulled  him 
towards  him.  He  seemed  a  good  deal  agitated,  but  after  a  few 
moments  sunk  down  again  into  his  former  weak,  feeble  state ; 
that  he,  Joseph,  then  went  and  looked  for  the  copy  of  the  will 
which  he  had  made,  and  found  it,  and  determined  to  get  his 
father  to  sign  it  and  set  it  up  as  the  will.  That  about  eleven 
o'clock  he  got  Mr.  Phares  and  his  wife  and  a  man  whom  he  had 
on  his  farm  as  witnesses,  and  then  filled  up  the  blanks,  read  the 
will  over  aloud  to  him  and  asked  him  if  that  was  his  will.  He 
nodded  his  head  to  express  his  assent,  and  signed  it.  *Deponent 
inquired  how  he  signed  it,  as  he  understood  that  it  was  his  right 
hand  which  was  lame.  Joseph  replied  that  Mr.  Phares  put  the 
pen  between  his  fingers  and  directed  his  hand  and  wrote  his 
name  out  at  full  length ;  that  his  father  gave  a  great  manifesta- 
tion that  he  knew  what  he  was  about  by  extending  his  hand  of 
his  own  accord,  willingly,  when  he  told  him  to  put  his  finger  on 
the  seal  after  the  will  was  signed.  Joseph  then  asked  deponent 
if  he  did  not  think  the  will  would  stand,  executed  as  it  had  been. 
Deponent  replied  that  he  did  not  know ;  that  it  was  very  hard 
to  tell  whether  a  man  was  in  his  senses  when  he  did  not  speak. 
Joseph  said  he  did  not  think  that  it  was  so  difficult ;  that  all  his 
actions  and  motions,  especially  extending  his  hand  to  put  his 
finger  on  the  seal,  showed  that  he  understood  what  he  was  about 
as  well  as  if  he  spoke.  Deponent  then  said  that  if  he  inU-iuUtl 
*598  45 


706  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


to  make  a  will  of  it,  it  was  a  pity  that  he  had  not  got  more 
respectable  witnesses.  Joseph  replied  that  he  could  not  do  it ; 
that  the  neighbors  were  all  at  church  at  the  time,  but  he  had  been 
sorry  since  that  he  did  not  go  up  to  the  church  and  bring  them 
down. 

In  1814,  when  deponent  signed  the  will  as  a  witness,  he  then 
thought,  and  still  thinks,  that  Benjamin  Vancleve  was  of  a  dis- 
posing mind,  fit  to  make  a  will  if  no  improper  influence  was 
made  use  of  towards  him ;  that  will  was  signed  in  the  presence 
of  deponent,  deponent's  nephew,  Charles  Reeder,  and  his  wife, 
whose  names  were  put  to  it  as  witnesses.  Deponent  is  perfectly 
satisfied  that  for  at  least  one  whole  year  before  the  death  of  Ben- 
jamin Vancleve,  the  said  Benjamin  had  not  a  mind  and  memory 
sufficiently  sound  to  make  a  will  to  dispose  of  his  property  with 
reason  and  discretion,  or  to  manage  it  in  a  proper  manner. 

Jonathan  Doan.  On  the  25th  or  26th  of  August,  1817, 
Johnson  applied  to  witness,  who  employed  him  as  a  journeyman 
carpenter,  and  he  worked  with  him  until  the  22d  of  September 
at  General  Wilson's  house.  The  day  he  came,  or  the  day  after, 
he  introduced  a  conversation  and  told  witness  and  Maturin  Red- 
way  that  he  came  from  sea  through  New  York,  and  was  going 
to  his  parents  below  Philadelphia ;  that  he  was  called  in,  on  the 
road,  to  witness  the  will  of  an  old  man  by  the  name  of  Vancleve, 
and  that  there  would  be  a  lawsuit  after  his  death,  as  he  was  not 
capable  of  making  a  will ;  he  could  not  speak  so  as  to  be  heard 

unless  you  put  your  ear  close  to  his  mouth,  and  he'd  be  d d 

*if  he  could  hear  what  he  said  when  he  acknowledged  his  will. 
He  thought  the  son  made  it  to  suit  himself.  Johnson  spoke  of 
it  frequently,  but  no  one  was  present  except  Redway,  and  once 
General  Wilson  was  present,  whom  witness  had  informed  what 
Johnson  said.  Witness  met  Johnson  after  he  had  been  sworn 
in  the  cause,  and  being  told  by  him  what  he  had  sworn  to,  wit- 
ness told  Redway  that  he  had  told  two  stories,  and  meeting  Doc- 
tor James  Clarke  informed  him,  and  that  occasioned  witness 
being  subpoenaed. 

Maturin  Redway.  Worked  with  Johnson  and  Doan  at  Wil- 
son's. Johnson  said  he  was  called  in  on  Sunday  to  witness  Mr. 

*599 


SOUTH.]         SEPTEMBER  TERM,  1819.  707 


Den  v.  Vancleve. 


Vancleve's  will,  and  he  thought  there  would  be  a  lawsuit  about 
it  and  he  should  be  called  this  way  as  a  witness,  as  he  thought 
testator  nearly  dead,  and  it  was  more  his  son's  will  than  his  ; 
that  he  was  not  capable  of  making  it  or  speaking  so  he  could  be 
heard,  unless  you  put  your  ear  very  close  to  his  mouth,  then  you 
<»uld  hear  him  ;  that  he  had  heard  him,  though  he  did  not  speak 
«o  as  to  be  heard  at  a  distance.  Johnson  said  this  soon  after  he 
began  to  work  and  several  times  afterwards,  sometimes  in  General 
Wilson's  presence.  The  day  before  witness  was  sworn,  Johnson 
informed  him  what  he  had  sworn,  and  witness  thought  he  had 
told  two  different  stories. 

Perrine  Castner.  Worked  for  defendant  from  the  spring  of 
1817  until  after  testator's  death,  which  took  place  on  Saturday 
night  in  the  month  of  August.  Always  accustomed  to  go  out 
on  Saturday  night  and  stay  until  Monday  morning,  to  which  de- 
fendant did  not  object ;  went  out  as  usual,  after  sunset,  the  Sat- 
urday before  testator  died  and  returned  before  sunrise,  and  before 
defendant  was  up,  on  Monday  morning.  On  his  coming  home, 
witness  went  to  his  room,  changed  his  dress,  went  to  the  barn 
and  took  care  of  the  cattle,  of  which  defendant  had  a  consider- 
able stock,  and  from  thence  went  into  the  field  and  worked  until 
breakfast.  Johnson  was  not  at  the  house  then  ;  witness  did  not 
see  or  hear  of  him,  nor  did  defendant  find  any  fault  with  wit- 
ness for  his  absence.  Defendant  had  no  other  man  to  work  for 
him  and  take  care  of  his  cattle  but  a  negro  boy  about  twelve 
years  old.  When  witness  went  there  in  the  spring  testator  could 
walk  and  talk  but  had  not  his  memory.  Often,  sometimes  twice 
a  day,  he  asked  witness  who  he  was,  and  if  he  was  the  man  that 
Joseph  had  employed,  and  being  answered,  seemed  satisfied.  He 
*sometimes  walked  into  the  field  where  witness-was  at  work  and 
talked  with  him,  on  which  occasions  defendant  used  to  tell  wit- 
ness not  to  mind  what  he  said,  he  did  not  know  what  he  said 
and  could  not  remember  what  he  said  five  minutes  at  a  time. 
Defendant  and  his  wife  spoke  sharp  to  him,  treated  him  harshly 
and  had  him  entirely  under  control  and  direction  to  do  what 
they  told  him  to  do,  and  prohibited  witness  from  doing  things 
that  he  requested.  He  sometimes  came  into  the  kitchen  in  the 

*600 


708  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Van  cl  eve. 


summer  and  said  he  wanted  more  fire  made  on  in  the  kitchen, 
when  they  would  stop  witness  from  getting  it,  and  say  to  him 
"Father,  we  want  no  more  fire,"  and  then  it  would  be  all  done 
with  ;  he  said  it  must  be  just  as  Joseph  said,  for  he  was  afraid  of 
him.  On  these  occasions  witness  always  thought  there  was  wanted 
more  fire  in  the  kitchen.  This  was  the  only  instance  witness 
recollected  in  which  defendant  or  his  wife  treated  testator  harshly, 
or  in  which  witness  was  prohibited  by  them  from  doing  what  he 
requested.  He  was  in  his  senses  a  few  minutes  at  a  time  and 
then  out  of  them  again.  When  he  spoke  of  wanting  more  fire, 
as  above  related,  he  seemed  to  be  reasonable,  and  when  he  was 
done  speaking  he  seemed  to  be  out  of  his  senses  again.  By  being 
out  of  his  senses  witness  meant  that  he  had  lost  his  memory. 
In  June  he  had  the  fit,  after  which  he  was  helpless,  not  able  to 
stir  without  assistance,  confined  to  his  bed,  required  cleaning  in 
the  same  way  as  a  child ;  and  although  he  moved  his  lips  and 
tried  to  speak,  yet  he  did  not  and  could  not,  so  far  as  witness 
could  ever  see  or  hear ;  persons  sometimes  attempted  to  talk  with 
him,  but  he  made  no  answer.  He  did  not  appear  to  have  any 
senses  or  understanding,  or  to  be  capable  of  any  kind  of  business. 
Witness  was  sometimes  called  in  to  assist  and  help  clean  him, 
and  sometimes  went  into  the  room  merely  to  look  at  him.  Wit- 
ness never  had  any  conversation  with  the  lessors  about  his  testi- 
mony. 

James  Brearley,  Jr.,  lived  about  three-quarters  of  a  mile  from 
testator,  and  knew  him  from  infancy,  but  did  not  see  him  often 
the  latter  part  of  his  life ;  for  the  last  five  years  very  seldom, 
and  had  no  conversation  with  him.  About  a  year  before  his 
death,  witness  was  passing  along  the  road  towards  Trenton,  with 
an  umbrella  in  his  hand ;  he  sat  on  the  porch  and  asked  what 
witness  had ;  held  up  the  umbrella,  when  he  came  to  the  fence 
by  the  road,  and  asked  who  witness  was  and  who  his  father  was, 
*and  being  informed,  seemed  satisfied.  Saturday  night  before 
his  death,  witness  and  Richard  Hendrickson  went  to  the  house 
about  dusk  and  sat  up  with  him  until  about  sunrise ;  wet  his 
mouth,  and  sometimes  helped  him  to  drink,  prepared  by  the 
family.  He  was  frequently  awake,  but  seemed  from  his  appear- 

*601 


SOUTH.]         SEPTEMBER  TERM,  1819.  709 


Den  r.  Vancleve. 


ance  as  if  he  had  no  recollection,  and  could  not  move  without 
:i--i~tance,  unless,  perhaps,  it  was  his  left  arm.  He  seemed 
incapable  of  any  kind  of  business.  Witness  could  not  tell 
whether  he  could  talk ;  did  not  see  him  try.  Once  or  twice  he 
seemed  to  take  notice,  and  when  his  son  came  into  the  room,  in 
the  morning,  he  seemed  as  if  he  wanted  to  say  something,  but 
<»uld  not.  Towards  morning  witness  looked  upon  him  as  dying, 
«ud  called  up  his  son,  the  defendant. 

Question  by  juror — Did  he  know  his  son  Joseph  when  he 
<ame  into  the  room?  Answer — I  thought  he  did  know  him. 

Richard  Hendrickson.  From  witness'  infancy  acquainted  with 
testator,  and  saw  him,  sometimes,  in  the  latter  part  of  his  life, 
but  seldom  had  any  conversation  with  him.  He  sometimes 
stopped  witness,  called  him  by  name,  and  talked  with  him. 
Witness  sat  up  with  him,  in  company  with  James  Brearley,  but 
•could  not  recollect  the  time.  Testator  then  very  ill ;  did  not 
spoak  or  appear  able  to  speak,  or  do  any  kind  of  business, 
though  he  might  have  been.  Towards  morning  he  appeared  to 
alter  so  much  that  they  thought  him  a  dying  man,  and  that  it 
was  necessary  to  wake  up  the  family. 

Elizabeth  Phillips  was  the  daughter  of  Thomas  Stevens,  who-e 
first  wife  was  testator's  daughter,  and  had  no  children.  Witness 
never  visited  at  testator's  with  her  parents,  and  seldom  saw  him 
at  his  own  house.  About  two  years  before  his  death,  at  his 
house,  he  asked  witness  who  she  was.  Witness  told  him, 
Thomas  Stevens's  daughter.  He  asked  if  Thomas  Stevens  did 
not  marry  his  daughter  Cordelia.  Answer,  "Yes."  He  then 
asked  if  witness  was  her  daughter,  and  it  was  some  time  before 
witness  could  make  him  understand  that  she  was  not  her  daugh- 
ter. Witness  was  with  Mrs.  Phares,  going  to  church,  on  tin- 
Sunday  the  will  was  executed.  Defendant  was  standing  at  the 
gate.  Mrs.  Vancleve  came  out  and  asked  Mrs.  Phares  to  go  in, 
that  her  father  lay  in  a  cold  sweat,  and  she  did  not  think  he 
would  live  until  night.  Mrs.  Phares  asked  if  she  intended  to 
«end  for  Mrs.  Stevens.  She  replied  she  had  gone  away,  and 
she  did  not  intend  to  send  for  her.  Wit*ness  had  sometimes 

*602 


710  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


seen  testator  at  her  Uncle  Stevens',  and  her  grandfather's,  but  had 
no  particular  conversation  with  him. 

Waters  Smith.  Sat  up  with  the  testator  three  times  during; 
his  last  illness ;  the  first  time,  in  June  ;  the  last  time,  the  night 
he  died ;  but  did  not  see  him  in  the  day-time.  The  first  time 
he  took  hold  of  witness'  hand  and  pulled  him  to  him,  but  did 
not  speak,  and  perhaps  could  not ;  his  lips  moved  as  if  he  wa& 
making  an  effort,  to  speak,  and  witness  supposed  testator  knew 
him.  The  second  time  was  some  weeks  after,  and  witness  did 
not  go'to  his  bed.  Witness'  wife  sat  with  him  and  gave  testator 
drink.  He  did  not  speak,  as  witness  heard,  during  any  of  these 
nights.  He  cast  his  eyes  round  the  room,  but  did  not  appear  as. 
if  he  had  any  recollection  or  knowledge  of  what  was  going  on  * 
nor  did  he  appear  as  if  he  had  a  mind  capable  of  transacting  his 
business  or  disposing  of  his  property  with  discretion,  though 
witness  did  not  know  what  passed  in  his  mind.  There  did  not 
seem  any  very  material  alteration  in  his  appearance  the  last  night. 

Mrs.  Barsheba  Smith,  wife  of  Waters  Smith,  was  a  niece  of 
testator,  and  knew  him  from  the  time  she  was  a  child.  Before 
his  last  sickness  he  was  forgetful,  and  asked  over  the  same  ques- 
tion repeatedly ;  sometimes  did  not  know  witness  and  asked  her 
name.  His  memory  gradually  grew  worse.  He  was  treated  as 
such  old  people  generally  are.  It  was  twelve  weeks  after  the 
stroke  of  the  palsy  before  he  died.  Witness  sat  up  with  him 
five  times  in  his  last  sickness,  one  of  which  times  was  the  Mon- 
day night  after  the  will  was  executed.  During  the  whole  time 
he  lay  in  the  same  state ;  there  was  no  material  change.  He  did 
not  speak,  as  witness  heard,  except  to  say  Oh !  once  when  his 
back  was  sore  and  they  were  turning  him.  Defendant  was  often 
in  the  room  and  spoke  to  him,  but  witness  heard  no  answer. 
She  thought  he  would  have  spoken  to  her  if  he  could.  He  took 
hold  of  her  hand  affectionately  and  always  looked  at  her  when 
she  went  up  to  him.  He  also  appeared  to  look  at  defendant  and 
his  wife  and  their  family  with  affection,  and  to  know  them.  He 
was  incapable  of  helping  himself,  and  his  personal  wants  and 
calls  of  nature  of  every  kind  were  administered  to  exactly  like 
an  infant.  He  always  took  what,  and  so  much,  as  was  given  to 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  711 


Den  v.  Vancleve. 


him,  though  he  could  not  always  take  it  without  difficulty ;  the 
passage  of  his  throat  was  somewhat  stopped.  His  countenance 
was  familiar,  but  somewhat  wild.  On  the  third  night  a  bound 
girl  was  along  *with  witness ;  he  knew  the  one  from  the  other, 
and  looked  at  the  girl  as  a  stranger  and  as  if  he  wanted  to  know 
who  she  was.  The  palsy  affected  only  his  right  side  and  he 
often  moved  his  left  hand  and  foot. 

Mrs.  Ruth  Stevens,  niece  of  the  testator,  sat  up  with  testator 
one  night,  about  a  fortnight  before  his  death,  in  company  with 
his  daughter,  Mrs.  Clarke.  He  was  very  feeble  and  low.  He 
did  not  speak  nor  make  any  answer,  although  Mrs.  Clarke  often 
asked  him  what  he  wanted  to  relieve  him.  He  did  not  appear 
able  to  tell  her  or  make  her  understand.  He  only  made  a  noise 
in  his  throat.  She  was  obliged  to  administer  to  him  by  her  own 
judgment.  Witness  did  not  see  him  show  any  desire  or  sign 
that  he  wanted  anything,  or  that  he  had  enough ;  he  was  per- 
fectly passive.  Witness  was  sometimes  asleep  and  sometimes 
awake  during  the  night.  Saw  him  three  times  in  his  last  illness 
but  did  not  hear  him  speak.  When  she  went  ifi  he  was  told 
who  she  was — that  she  was  his  sister's  daughter — he  grasped  her 
hand  and  held  it  and  looked  up  wild  in  her  face,  as  if  he  wanted 
to  know  her,  and  she  thought  at  first  that  he  did,  but  as  he 
grasped  other  persons'  hands  and  looked  at  them,  she  could  not 
now  tell  whether  he  did  or  not.  Before  his  last  sickness  his 
memory  had  failed,  sometimes  knew  witness,  sometimes  not,  at 
first,  until  told  who  she  was.  He  sometimes  told  the  same  story 
several  times  over. 

Rev.  Isaac  V.  Brown.  Acquainted  with  testator  and  his 
family  since  1809,  when  he  became  the  pastor  of  the  conirre- 
gation  in  Lawrenceville.  Witness  visited  him  a  few  days  after 
he  was  struck  with  the  palsy,  which  occurred  between  the  H)th 
and  15th  of  June ;.  found  him  in  bed  in  a  very  low,  reduced  and 
impaired  situation.  When  witness  came  up  to  his  bed  testator 
looked  at  him  with  a  curious  and  inquisitive  eye,  and  witness 
thought  testator  knew  him.  Leaning  over  him,  and  in  a  loud 
tone  of  voice,  witness  spoke  to  him  at  some  length  on  the  subject 
of  religion,  stating  some  of  those  principles  of  Christianity  which 

*603 


712  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


were  most  deeply  interesting  and  of  extreme  importance  to  him 
in  his  situation.  During  the  course  of  these  remarks  he  several 
times  inclined  his  head  and  signified  that  he  concurred  in  what 
was  said.  Once  he. uttered  a  sound  which  witness  did  not  under- 
stand, but  his  daughter,  Mrs.  Stevens,  standing  on  the  other  side 
of  the  bed,  informed  witness  that  he  understood  it  very  well, 
and  said  "  Very  true,"  "  All  very  true,"  and  on  reflecting  on  the 
sounds  they  ap*peared,  to  witness,  like  those  words.  Witness 
was  satisfied,  from  the  expression  of  his  countenance,  the  motion 
of  his  eyes,  the  inclining  of  his  head  and  the  sounds  he  uttered, 
that  he  did  understand  what  was  stated  to  him.  He  was  capable 
of  understanding  simple  but  not  intricate  things  or  proposi- 
tions, and  could  understand  the  important  truths  communicated 
to  him  at  that  time,  when  stated  clearly  and  distinctly,  but 
could  not  follow  a  common  rapid  conversation.  Witness  kneeled 
by  his  bed  and  made  a  prayer,  but  doubted  whether  he  could 
follow  him  in  his  rapid  way  of  expressing  himself.  Witness  was 
several  times  at  the  house  afterwards,  but  did  not  go  into  that 
room,  because,  in  the  state  testator  was  in,  he  thought  it  not 
probable  that  it  would  be  pleasant  to  the  family,  or  that  he  was 
likely  to  profit  much  by  what  was  said.  Once  witness  went  to 
the  room,  but  he  lay  asleep  or  under  the  influence  of  paregoric, 
which  he  sometimes  took.  Before  the  stroke  of  the  palsy  his 
memory,  as  to  recent  things,  was  impaired,  and  his  recollection 
of  things,  from  day  to  day,  was  weak ;  but  his  memory,  as  to 
former  things,  was  comparatively  strong.  After  the  stroke  wit- 
ness did  not  think  him  capable  of  disposing  of  a  large  estate,  in 
a  perfect  manner,  but  if  the  disposal  of  his  property  which  he 
had  previously  contemplated,  and  which  had  been  familiar  to  him, 
had  been  proposed  to  him,  he  would  have  known  and  remem- 
bered it,  and  if  it  had  not  agreed  with  his  mind  he  would  have 
refused  to  execute  it.  He  could  understand  what  he  had  pre- 
viously fixed  upon  in  his  own  mind. 

Question  by  counsel  for  defendant — Did  not  testator,  many 
years  ago,  inform  you  that  he  intended  to  give  his  real  estate  to 
his  son  Joseph  ?  [Objected  to  by  plaintiff's  counsel,  and  waived 
for  the  present.] 

*604 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  713 


Den  v.  Vancleve. 


Thomas  Stevens,  a  brother  of  one  of  the  lessors,  brother-in- 
law  of  John  Phares,  and  his  first  wife  was  Cornelia,  daughter  of 
testator.  In  the  month  of  August,  1817,  after  the  will  was 
signed,  and  both  before  and  after  testator's  death,  witness  con- 
versed with  Phares  about  it,  and  well  recollected  two  of  the  con- 
versations at  witness'  house,  both  of  which  were  nearly  the  same, 
and  one  of  which  was  at  the  dinner-table  in  the  presence  of  his 
wife,  mother  and  children.  Though  witness  was  somewhat  hard 
of  hearing,  he  thought  he  understood  these  conversations  perfectly 
well,  but  did  not  recollect  who  introduced  them.  Phares  said  he 
had  been  a  witness  to  Benjamin  Vancleve's  *will,  and  his  wife 
also  informed  witness  of  the  same.  Witness  asked  Phares  what 
he  thought  of  testator,  and  if  he  considered  him  capable  of 
making  a  will.  He  said  he  did  not  look  upon  him  as  capable 
of  any  kind  of  business,  or  conveying  away  his  property  either 
by  will  or  deed.  Witness  asked  him  how  he  came  to  do  such  a 
thing  as  to  be  a  witness  to  his  will.  Witness  did  not  recollect,  cer- 
tainly, what  he  said  in  answer,  but  believed  it  was  that  he  did 
it  by  the  request  of  testator's  son.  Witness  told  him  that  he 
himself  would  not  have  done  such  a  thing — he  might  as  well 
have  taken  hold  of  a  dead  man's  hand ;  at  these  conversations 
witness  did  not  know  how  the  will  ran.  Witness  had  been  in 
the  habit  of  visiting  at  testator's  frequently — as  much  so  as  at 
any  house  in  the  neighborhood — but  had  not  seen  him  for  six 
months  or  a  year  before  he  had  a  stroke  of  the  palsy  ;  saw  him 
once  while  he  was  ill ;  he  lay  on  his  back  ;  his  eyes  open  ;  took 
no  notice  of  witness  when  he  came  in  or  went  out,  any  more  than 
a  dead  man.  Witness  could  not  say  whether  testator  knew  him 
or  not.  Witness  was  on  intimate  terms  with  John  Phares ;  he 
was  a  man  of  good  standing  in  his  neighborhood,  and  witness 
never  heard  anything  against  his  character. 

Mrs.  Hannah  Stevens,  the  wife  of  Thomas  Stevens,  and  the 
sister  of  Mrs.  Phares,  was  present  at  the  two  conversations  re- 
ferred to  by  her  husband,  at  his  house.  They  were  both  before 
testator's  death,  and,  in  both,  the  language  of  John  Phares  was 
the  same.  In  the  first  conversation  Mrs.  Phebe  Stevens,  one  of 
the  lessors,  who  met  him  at  the  house,  began  the  conversation, 

*605 


714  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


and  asked  him  if  ho  considered  her  father,  on  the  Sunday  when 
she  left  there,  capable  of  making  a  will  and  conveying  away  his 
property.  Phares  answered,  "  No,  by  no  means ;  he  had  not  utter- 
ance to  convey  his  property."  Witness  began  the  second  conver- 
sation by  asking  the  same  question  Phebe  Stevens  had  asked, 
and  Phares  made  the  same  reply.  He  was  asked  how  he  could 
attempt  such  a  thing  as  being  a  witness.  He  replied  he  did  it 
by  the  son's  request.  He  called  at  witness'  house,  either  going 
or  returning  from  the  paper-mill.  Before  the  first  conversation 
Phebe  Stevens  told  witness  what  had  been  done,  and  that  she 
was  charged  with  taking  the  wills.  Witness  called  in  once,  in 
testator's  last  illness,  more  than  a  week  before  his  death,  to  see 
him,  went  up  and  took  hold  of  his  hand ;  he  lay,  apparently,  in 
an  insensible  state,  with  rather  a  vacant  stare  on  his  countenance, 
but  *said  nothing.  Witness  did  not  sit  down,  nor  say  any- 
thing, nor  did  anyone  else  say  anything.  Witness  merely 
looked  at  him  and  went  away  again. 

Mrs.  Sarah  Smith,  sister  of  Mrs.  Phares  and  Mrs.  Stevens, 
lived  within  half  a  mile  of  testator,  and  knew  him  from  the 
time  she  was  sixteen  years  old ;  he  often  visited  at  her  father's. 
Saw  him  two  or  three  times  after  he  was  taken  down,  and  sat  up 
with  him  on  the  night  he  died,  and  the  Wednesday  preceding, 
and  then  ministered  to  him  like  a  child.  Never  spoke  to  him, 
nor  heard  any  one,  nor  heard  him  speak.  He  lay  on  his  back, 
and  appeared  insensible,  and  did  not  know  her  as  she  took  notice 
of.  The  first  time  she  saw  him  after  his  illness,  which  was 
several  weeks  before  he  died,  he  took  her  hand,  or  she  his,  and 
he  pulled  hers  towards  him.  Sometime  before  his  last  illness, 
his  memory  failed  him  very  much,  and  it  was  commonly  re- 
marked that  he  was  failing  very  fast.  Frequently  at  her  father's 
house  he  did  not  know  witness ;  the  first  occurred  six  or  seven 
years  before;  and  about  a  year  before,  when  she  called  at  his 
house,  he  did  not  know  her,  and  inquired  who  she  was.  After 
he  was  taken  down,  witness  did  not  think  that  he  had  a  mind 
and  judgment  to  do  any  kind  of  business,  and,  therefore,  told 
Mr.  and  Mrs.  Phares  that  she  disapproved  of  their  signing  as 
witnesses.  She  had  but  little  conversation  with  Phares,  and 

*60G 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  715 


Den  v.  Vancleve. 


heard  him  say  but  little  about  it ;  but  both  Mr.  and  Mrs.  Phares 
said  they  thought  what  they  did  was  right.  Witness  considered 
the  conduct  of  defendant  and  his  wife  towards  the  testator,  rea- 
sonable, prudent,  and  proper ;  they  always  seemed  attentive  and 
kind  to  him. 

Mrs.  Ruth  Stevens,  again.  Intimately  acquainted  with  the 
family  of  the  testator,  and  with  his  two  daughters.  He  always 
appeared  to  be  an  affectionate  father,  and  they  dutiful  daughters. 
So  far  as  the  witness  knew,  he  was  on  good  terms  with  his  sons- 
in-law.  He  visited  very  frequently  at  John  Stevens's,  but  she 
believed  he  did  not  visit  much  at  Dr.  Clarke's. 

Plaintiff  rested  his  evidence. 

•L.  H.  Stockton,  for  the  defendant,  offered  Ralph  Lanning,  and 
other  witnesses,  to  prove  that  the  testator  at  sundry  times,  and 
many  years  before  his  death,  in  1809,  and  at  other  periods,  de- 
clared to  them  that  it  was  his  intention  that  his  son  Joseph,  the 
defendant,  should,  after  his  death,  own  and  enjoy  all  the  *landed 
property  of  which  he  should  die  possessed ;  that  to  effect  this 
purpose  he  had  made  a  will,  devising  it  to  said  defendant ;  that 
he  gave  his  reasons  for  so  doing,  and  what  those  reasons  were ; 
and  that  these  declarations  were  uniform  and  continued  as  long 
as  he  was  capable  of  speaking. 

[This  evidence  was  objected  to  by  the  counsel  of  the  plaintiff, 
as  inadmissible  upon  the  issue  before  the  jury.] 

The  objection  was  elaborately  argued  by  R.  Stockton,  Jr.,  and 
Wall,  for  the  plaintiff.  L.  H.  Stockton  and  Attorney- General, 
for  defendant. 

SOUTHARD,  J.,  expressed  the  opinion  of  the  court,  and  de- 
clared the  evidence  .admissible.  To  this  opinion  the  counsel  of 
the  plaintiff  prayed  a  bill  of  exceptions,  and  it  was  ordered. 

From  the  course  which  the  cause  subsequently  took,  the  re- 
porter does  not  think  it  necessary  to  give  the  substance  either  of 
the  argument  of  the  counsel  or  of  the  remarks  of  the  court. 

*607 


716  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


Evidence  for  the  defendant. 

It  was  admitted  by  the  parties  that  John  Vancleve,  the 
brother  of  the  defendant,  died  in  the  month  of  July,  in  the  year 
1802. 

Edmund  Roberts.  A  little  before  John's  death  witness  had 
a  conversation  with  testator  about  learning.  He  was  then  a 
member  of  the  legislature,  and  long  before  and  after,  a  man  of 
high  standing  in  society.  He  had  given  a  part  of  his  farm  to 
John,  and  told  witness  that  he  had  given  John  an  education, 
which  would  be  more  valuable  to  him  than  so  much  fast  prop- 
erty, and  he  intended  to  give  Joseph  the  farm  on  which  he 
lived ;  that  if  he  gave  John  nothing  more,  he  should  have  done 
as  well  by  him  as  if  he  gave  him  more  land.  He  said  nothing 
of  his  daughters.  The  last  time  witness  called  to  see  him,-or 
had  any  conversation  with  him,  was  about  two  years  before  his 
death.  It  was  in  the  last  summer  of  the  last  war.  He  was  then 
an  altered  man.  When  witness  came  up  to  him  on  his  porch,  he 
did  not  seem  to  know  witness,  but  said,  "  You  have  the  advantage 
of  me."  Witness  said  he  thought  it  was  strange  he  did  not  know 
him.  He  said  he  thought  he  knew  witness'  voice.  "Witness  told 
his  name.  He  then  said  it  was  strange  he  did  not  know  him, 
and  asked  him  to  walk  in.  They  sat  and  conversed  in  the  pas- 
sage about  an  hour.  He  spoke  of  what  had  happened  in  the 
revolutionary  war  and  in  *the  legislature,  and  appeared  to  have 
his  memory  perfectly  about  ancient  matters,  and  whenever  any- 
thing was  presented  to  his  mind,  he  understood  it  fully.  His 
judgment  was  very  bright  and  accurate.  He  told  his  daughter 
to  bring  something  to  drink ;  asked  witness  to  drink,  and  to  call 
and  see  him  again,  and  seemed  desirous  to  be  familiar  and  to 
keep  up  acquaintance. 

Ralph  Lanning.  Sixty  years  old  in  March ;  lived  within  a 
mile  of  testator,  and  knew  him  for  twenty  years  last  past.  In 
June  or  July,  seven  years  ago,  was  passing  along  the  road,  and 
testator,  who  was  sitting  on  his  porch,  called  witness  to  him.  In 
the  conversation,  he  asked  witness  what  he  was  going  to  do  with 
all  his  land.  Witness  replied  that  he  had  heirs  and  heiresses 
enough.  He  then  told  witness  that  he  had  better  do  as  he  was 

*608 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  717 


Den  r.  Vancleve. 


going  to  do.  Witness  asked,  "How  is  that?"  He  replied,  "Give 
it  all  to  ray  son  Joseph."  Witness  asked  why.  He  said  Dr.  Clarke 
had  plenty  of  land,  and  so  had  Major  Stevens  ;  that  Joseph  should 
take  the  land,  and  pay  his  two  sisters ;  and  that  witness  had  bet- 
ter not  break  his  farm,  but  give  it  all  to  one  of  his  sons.  After 
this  they  conversed  about  farming,  and  such  matters  as  are  com- 
mon for  neighbors  to  talk  about. 

Rev.  Isaac  V.  Brown,  again.  During  one  of  witness'  paro- 
chial visits  to  testator's,  between  1810  and  1813,  testator  said 
that  he  would  give,  or  had  given,  his  farm  to  Joseph,  so  that  he 
should  have  it  after  he  was  done  with  it.  Witness  did  not  recol- 
lect what  led  to  the  conversation ;  but,  as  he  did  not  wish  to 
enter  into  such  subjects  in  his  conversations,  he  disposed  of  it  as 
soon  as  he  could.  Witness  did  not  recollect  that  anything  was 
said  of  the  daughters.  Witness  was  well  acquainted  with  the 
character  of  Phares  and  his  wife.  -Phares  was  a  man  of  con- 
siderable intelligence,  good  principles,  correct  deportment,  a 
professor  of  religion,  in  bad  health  the  latter  part  of  his  life, 
and  passed  through  trying  circumstances,  being  reduced;  but 
witness  never  heard  his  reputation  assailed  by  anybody.  For 
several  weeks  before  his  death,  he  was  very  sick  and  low,  and  in 
witness'  last  visit,  three  or  four  days  before  he  died,  was,  or  ap- 
peared to  be,  fully  impressed  with  the  belief  that  he  was  about 
to  die.  Mrs.  Phares  had  been  respectable,  both  as  a  young  and 
as  a  married  woman.  Witness  considered  her  a  pious  woman 
and  exemplary  Christian.  Mrs.  Ruth  Stevens  has  a  good  and 
correct  general  character ;  and  *Thomas  Stevens  was  considered 
upright,  respectable,  and  of  veracity. 

Henry  Cook  was  sixty  years  old ;  had  known  testator  forty 
years,  when  he  commanded  a  company  at  the  battle  of  Long 
Island.  Witness'  farm  adjoined  the  premises.  About  the  year 
1810,  testator  came  over  to  visit  witness.  He  said  that  Joseph 
had  bought  John's  part  of  the  land,  which  was  about  one  hun- 
dred acres,  given  him  by  testator,  lying  over  the  road,  and  got 
it  pretty  well  under  way  for  paying  for  it.  He  was  pleased  with 
it,  as  the  place  would  be  all  together  again.  Witness  asked  tes- 
tator if  he  had  given  the  rest  of  the  place  to  Joseph.  He  said 

*609 


718  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


no ;  he  meant  to  keep  it  as'  long  as  he  lived,  and  then  Joseph 
might  have  it.  He  did  not  mention  his  daughters.  The  rest  of 
the  conversation  was  about  indifferent  matters. 

It  being  proved  that  Charity  Smith  was  sick,  and  incapable 
of  attending,  her  deposition,  which  had  been  taken  by  Justice 
Southard,  under  the  statute,  was  read.  It  stated  that  she  was 
grandmother  of  defendant's  wife ;  eighty-one  years  old  two 
days  before  her  deposition  was  taken ;  had  for  thirty  years  been 
a  near  neighbor  of  and  intimately  acquainted  with  testator,  and, 
for  one  or  two  years,  lived  in  the  house  with  him,  and  herself 
and  husband  were  very  much  attached  to  him,  and  he  to  them. 
She  went  to  his  house  every  day  for  some  time  before  his  death, 
because  when  she  came  in  he  used  to  take  her  by  the  hand  and 
hold  and  press  it,  tell  her  he  was  glad  to  see  her,  and  wished  her 
to  come  often.  He  always  knew  her  when  she  came  in.  She  was 
a  witness  to  a  will  made  by  testator  in  1809  ;  and  he  afterwards 
informed  her  that  he  made  another  will  in  1814,  because  he  had 
had  a  property  in  right  of  his  wife,  in  Monmouth,  which  he  had 
sold  ;  and  he  heard  that  Stevens  said,  after  he  was  dead  he  meant 
to  get  that  property,  which  testator  supposed  he  would  be  able 
to  do ;  and,  as  he  had  given  a  legacy  to  Stevens's  wife  in  his  first 
will  he  wished  so  to  alter  it  that  if  Stevens  did  get  back  that  prop- 
erty his  wife  should  not  have  the  legacy.  He  further  stated  to 
deponent  that  Doctor  Clarke  was  the  richest  man  in  the  neighbor- 
hood, and  able  to  support  testator's  daughter  without  his  giving 
him  anything ;  that  Stevens  had  no  child,  and  had  property 
enough  if  he  took  care  of  it,  and  it  was  needless  to  give  him 
more ;  that  he  had  advanced  to  his  daughter,  Mrs.  Clarke,  to  the 
amount  of  $800,  and  had  left  her  $200  *more  in  his  will,  making 
$1,000,  and  that  was  as  much  as  he  thought  any  common  farmer 
gave  his  daughters  ;  that  he  had  not  given  quite  as  much  to  Mrs. 
Stevens  because  she  had  no  child,  and  if  he  gave  more  Stevens 
would  not  take  care  of  it,  but  would  work  through  with  it,  but 
he  had  left  her  the  same  as  Mrs.  Clarke  in  the  will ;  that  his 
daughters  were  both  well  fixed,  and  he  intended  his  son  should 
have  his  farm.  Deponent  did  not  recollect  that  the  testator  told 
her  what  he  left  to  his  daughters  in  the  will  of  1809,  to  which 

*610 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  719 


Den  r.  Vancleve. 


she  was  a  witness,  but  believed  it  was  the  same  with  the  last  ex- 
cept the  alteration  before  mentioned.  He  often  told  deponent 
that  he  did  not  like  Stevens ;  that  Stevens  did  not  treat  him  with 
respect ;  that  he  was  often  at  Stevens's  house  when  they  were 
eating,  and  he  would  ask  him  if  he  had  eaten  in  such  a  way  as 
to  give  him  offence,  and  he  would  not  eat  with  him ;  that  he  was 
angry  with  Stevens  for  parting  with  his  farm.  Deponent  heard 
testator  tell  his  son  Joseph  that  he  must  take  care  of  Doctor  Clarke, 
and  not  put  himself  in  his  power ;  that  he  was  very  rich,  and  a 
cunning,  artful  man,  and  he  would  take  advantage  of  him  if  he 
could.  Deponent  had  a  perfect  recollection  of  a  conversation 
which  took  place  between  her,  defendant,  his  wife  and  Mrs.  Clarke, 
on  the  28th  of  August  last,  a  part  of  it  in  the  entry,  while  the 
door  of  testator's  room  was  open,  and  part  of  it  ill  his  room. 
Defendant  said  to  Mrs.  Clarke,  "  My  father's  will  is  gone,  and 
some  of  you  have  taken  it  away."  She  replied  she  could  take 
her  oath  Mrs.  Stevens  had  not  taken  it.  Defendant  said  "  You 
know  who  has  got  it."  She  replied  she  herself  had  not  got  it. 
Defendant  said  "  Some  of  you  have  it,  and  you  know  who  it  is." 
She  replied  she  did  not  care ;  it  was  no  more  than  he  would  have 
done  if  he  had  had  the  same  chance.  She  added  that  she  knew 
her  father  had  given  Joseph  the  land  in  all  the  wills,  and  in- 
tended him  to  have  it,  and  they  did  not  want  his  land.  Defend- 
ant then  said,  "  What  is  it  then,  Betsey,  that  you  do  want  ?"  De- 
ponent did  not  recollect  the  answer.  Mrs.  Clarke  was  in  a  vio- 
lent passion,  shook  her  fist  at  deponent,  and  raved  and  abused 
defendant,  his  wife,  and  deponent  very  much.  She  told  depo- 
nent that  Joseph  said  she  (deponent)  was  a  drunkard.  Depo- 
nent supposed  she  intended  to  make  her  angry  with  Joseph 
and  set  her  against  him,  and  replied  to  her,  "  When  you  strike  at 
anyone  and  don't  hit,  the  blow  doesn't  hurt ; "  that  she  did  not 
care  who  called  her  a  drunkard,  it  was  not  true,  and  a  good  con- 
science was  better  than  a  thousand  *witnesses.  Mrs.  Clarke  also 
told  her  to  tell  her  grand-daughter  Chatty  to  hold  her  tongue, 
and  not  say  so  much,  as  she  would  repent  it.  She  also  told  de- 
fendant and  his  wife  that  they  did  not  treat  her  father  well,  but 
abused  him,  and  deponent  knew  it,  and  that  they  had  also  abused 

*611 


720  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


deponent  while  she  lived  with  them.  Deponent  knew  that  this 
was  not  true,  both  as  to  testator  and  herself,  and  told  Mrs.  Clarke 
that  she  was  much  surprised  at  her  conduct,  and  at  what  she 
said.  Mrs.  Clarke  came  there  only  a  short  time  before  the  con- 
versation and  went  away  very  soon  after  it.  When  she  went 
into  the  room  testator  did  not  speak  to  her,  but  seemed  very 
much  affected.  He  lay  near  the  door,  so  that  he  could  hear 
what  was  said  in  the  entry  as  well  as  that  in  the  room  ;  he  seemed 
very  much  hurt;  the  tears  rolled  down  from  his  eyes,  and 
he  groaned  worse  than  deponent  heard  him  in  all  his  sickness. 
He  could  talk  on  that  day  and  did  converse  with  deponent  after 
Mrs.  Clarke  went  away,  about  indifferent  matters,  but  deponent 
did  not  mention  what  had  passed,  as  she  perceived  it  hurt  him. 
What  he  said  on  that  day  was  rational,  and  he  had  full  posses- 
sion of  his  reason  and  memory.  Deponent  thinks  she  saw  him 
on  the  day  the  will  was  executed,  as  she  was  there  every  day, 
and  on  that  day  he  was  of  sound  mind  and  memory.  They  had, 
at  times  before  this,  failed  occasionally,  but  in  the  main  he  had 
them  very  well ;  could  understand  what  was  said  to  him,  and 
answer  questions  put  by  anybody  that  came  in,  so  that  they  could 
understand  him,  but  he  did  not  converse  much  with  anyone. 
She  did  not  recollect  any  conversation  with  him  on  the  day  the 
will  was  executed,  nor  any  particular  conversation  in  his  last  ill- 
ness except  his  inquiries  about  the  health  of  different  neighbors, 
and  the  dispute  then  existing  between  Mr.  Reeder  and  Mr. 
Phares  about  a  line  of  their  lands.  He  often  talked  about  that 
dispute,  recollected  the  line,  and  where  the  old  road  ran,  and  all 
the  circumstances  about  the  dispute.  It  arose  after  he  was  con- 
fined by  his  last  sickness. 

Frazee  Ayers,  Esq.  In  consequence  of  his  marriage  with  the 
sister  of  defendant's  wife  he  had  been  acquainted  and  visited  in 
the  family  of  the  testator  since  1804.  In  the  year  1809,  walk- 
ing from  Mr.  Smith's  with  testator,  he  told  witness  that  he  had 
given  his  son  John  the  part  of  his  farm  on  the  east  side  of  the 
road,  with  twenty  acres  of  wood  on  the  other  side ;  that  since 
the  death  of  John  defendant  had  purchased  it,  and  he  was 
pleas*ed  with  it,  as  defendant  would  now  have  the  whole  farm 

*612 


2  SOUTH.]          SE1TKM!JKK  TKUM,  1819.  721 


Den  t.  Vancleve. 


together ;  that  he  had  made  his  will  and  left  the  rest  to  him,  and 
given  a  legacy  to  each  of  his  daughters  of  a  small  sum,  witness 
thought  about  $300  or  $400.  Witness  thought  the  sum  so  small 
for  his  large  property  that  he  turned  and  looked  at  him.  He 
then  said  that  his  daughters  were  very  well  married  and  would 
not  want  any  more ;  that  Joseph  had  been  all  the  time  with  him 
on  his  farm  and  he  intended  to  give  it  to  him ;  that  he  had  been 
obliged  to  make  up  a  considerable  sum  of  money  for  a  sheriff 
for  whom  he  was  security,  and  who  had  been  in  default,  and 
that  Joseph  had  helped  him  to  pay  the  money.  He  did  not  say 
that  he  helped  him  to  pay  it  off  the  farm. 

Jasper  Smith.  Was  about  the  same  age  as  testator  and  always 
lived  near  him  as  an  intimate  neighbor  and  friend.  About 
seven  years  ago  witness  sold  a  piece  of  land  to  Mr.  Lanning  and 
testator  took  him  to  task  about  it,  and  said  he  did  not  mean  to 
break  his  farm ;  that  he  had  made  or  intended  to  make  his  will, 
giving  it  to  Joseph,  who  should  pay  out  something  to  his  sisters. 
Witness  was  at  testator's  some  time  before  his  death,  when  Mr. 
Brown  talked  to  and  prayed  with  him  ;  he  seemed  still  and  very 
near  his  end ;  witness  did  not  recollect  that  he  heard  him  speak. 
Some  years  before  that  time  he  lost  his  recollection  very  much, 
but  his  judgment  was  quite  good  some  time  after  his  memory 
began  to  fail.  When  you  first  entered  into  conversation  with 
him  he  seemed  quite  forgetful,  but  after  some  conversation  he 
talked  rationally  and  understood  everything.  About  two  years 
before  he  had  the  palsy  he  went  on  horseback  with  witness  and 
defendant  to  view  a  line  which  was  in  dispute,  between  his  farm 
and  Mr.  Reeder.  He  pointed  out  where  the  line  was,  along  the 
brook,  said  they  had  encroached  and  cut  two  trees,  for  which  he 
would  make  them  pay,  but  he  was  an  olu  man  and  did  not 
choose  to  trouble  himself  with  it ;  that  they  were  neighbors  and 
Joseph  might  do  as  he  chose. 

Robert  Phares,  major,  brother  of  John  Phares.  Present  part 
of  the  time  when  his  deposition  was  taken ;  he  was  cautioned  by 
the  judge  to  tell  the  truth  ;  he  seemed  to  consider  himself  a  dying 
man  ;  was  very  weak  but  seemed  to  have  a  clear,  good  recollection. 
Much  delicacy  was  exhibited  towards  him  in  the  examination. 

46 


722  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


Samuel  L.  Southard  took  the  deposition  of  John  Phares.  He 
*was  weak  and  could  with  difficulty  relate  what  he  had  to  say. 
Very  few  questions  were  put  to  him,  but  he  detailed  the  answers 
as  they  were  taken  down.  The  deposition  is  nearly,  -or  quite,  in 
his  own  words,  perhaps  more  nearly  so  than  any  deposition  wit- 
ness ever  took. 

Samuel  Hunt,  son  of  Nathaniel  Hunt,  who  was  an  old  and  in- 
timate friend  of  testator.  Witness  was  thirty-eight  years  old 
and  acquainted  with  testator  from  his  youth,  and  lived  within 
three  miles  of  him.  Between  1810  and  1813,  he  informed  wit- 
ness that  when  he  was  done  with  the  property  where  he  lived  he 
intended  to  leave  it  to  Joseph.  At  that  time  his  memory  and 
judgment  were  good.  Witness  saw  very  little  of  him  from  1809 
to  February,  1817,  when  witness  visited  at  the  house  with  his 
wife.  Then  thought  his  memory  rather  impaired  and  not  so 
steady  as  formerly.  It  seemed  more  impaired  than  was  usual  in 
old  people ;  but  witness  did  not  speak  much  with  him  or  take 
any  pains  to  ascertain  the  state  of  his  mind,  but  rather  avoided 
conversation  with  him.  Witness'  father,  testator,  and  two  others 
were  sureties  for  John  Anderson,  sheriff  of  Hunterdon.  They 
had  to  pay,  each,  about  $800 ;  after  which  they  recovered  $500 
between  them,  and  out  of  this  $500  they  paid  away  about  $400. 
That  business  was  settled  about  1811.  Witness,  about  1810, 
heard  defendant  say  that  his  sisters  were  to  have  £200. 

Mrs.  M.  Phares,  again.  When  Mrs.  Clark  and  witness  were 
standing  by  the  dead  body  of  the  testator,  on  the  Sabbath  after 
his  death,  she  asked  witness  if  she  thought  he  had  his  senses  that 
day  week.  Witness  replied  that  she  did.  Mrs.  Clarke  then 
said  she  had  not  seen  anything  like  it  during  his  illness.  Wit- 
ness often  heard  John  Phares  speak  of  the  making  of  the  will, 
both  in  public  and  in  private,  and  he  always  held  the  same 
language  about  it  till  the  hour  of  his  death.  He  always  declared 
that  the  testator  was  capable  of  making  a  will ;  that  he  was  for- 
getful, but  his  judgment  was  good ;  that  he,  Phares,  was  satisfied 
with  what  he  had  done,  and  would  do  the  same  if  it  were  to  do 
over  again.  Witness  never  saw  anything  harsh  or  unfeeling  in 
defendant,  or  his  wife,  towards  testator.  They  always  behaved 

*613 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  723 


Den  ».  Vancleve. 


with  prudence  aud  propriety  towards  him ;  and  witness  heard 
Mrs.  Stevens  say,  in  her  father's  last  illness,  that  Mrs.  Vancleve 
had  treated  him  in  a  most  exemplary  manner. 

John  Potts.  Sometime  last  winter  John  Stevens  called  on 
*  wit  ness,  and  told  him  he  ought  to  allow  something  for  the 
•claim,  in  right  of  his  wife,  on  the  Monmouth  lands ;  that  he 
would  be  reasonable,  and  did  not  expect  to  demand  the  full  value. 
Witness  replied  that  he  had  not  expected  any  demand  for  it. 
Some  time  after,  witness  called  on  him  and  told  him  he  under- 
stood they  were  serious  in  the  demand.  Stevens  replied  that  he 
could  not  get  anything  of  Joe,  was  the  reason.  Joe  would  not 
allow  them  anything.  A  few  days  before  Monmouth  court,  at 
which  the  suits  brought  by  Clarke  and  wife  and  Stevens  and 
wife  for  the  Monmouth  lands  were  to  have  been  tried,  witness 
met  him  in  Mr.  Wall's  office,  and  some  conversation  occurred 
about  the  wills  which  were  missing,  and  witness  said  something 
to  him  about  their  being  stolen.  He  said  it  was  not  likely  that 
a  man  could  be  seen  at  a  distance,  through  a  window,  doing  a 
thing  like  that.  Witness  was  willing  to  give  $ 500  for  their 
claim  rather  than  go  to  law  about  the  lands.  They  were  bought 
of  testator  about  twenty  years  before  for  £300.  There  were 
seventy  acres;  and  the  tract  had  since  been  sold  for  $41.10  per 
acre.  When  they  were  bought  by  witness'  brother,  witness  told 
him  there  would  probably  be  some  difficulty,  as  they  belonged  to 
testator's  wife,  but  testator  replied  that  his  son  John  would  join 
him  in  a  warranty  deed,  and  he  would  make  such  arrangement* 
that  there  would  be  no  difficulty.  After  witness  heard  that  Doctor 
Clarke  meant  to  make  a  demand  for  the  land,  he  went  up  to  see 
testator.  It  was  after  he  was  struck  with  the  palsy.  He  lay  in 
bed  and  appeared  to  know  witness,  but  did  not  speak  or  attempt 
to  speak.  As  witness  stood  by  the  bed,  he  looked  earnestly  at 
witness,  took  his  hand,  and  laid  it  on  his  face.  Witness  thought 
he  was  not  capable  of  business,  and  left  him. 

Stephen  Johnson,  again.  Did  not  recollect  that  he  ever  said 
that  the  will  was  made  by  the  son,  and  not  by  the  testator,  nor 
that  he  was  in  his  dotage.  He  did  believe  that  he  was  in  his 
reason  on  the  day  the  will  was  signed,  and  did  make  the  will, 

*614 


724  NEW  JERSEY  SUPREME  COURT.     [5 


Den  t>.  Vancleve. 


and  that  the  son  did  not  make  it.  Witness  did  not  recollect  that 
he  ever  said  anything  to  anyone  about  it  until  General  Wilson 
came  into  the  house  one  day,  and  asked  him  about  it.  He  had 
then  been  at  work  there  some  days.  He  did  not  recollect  men- 
tioning it,  particularly,  to  Redway  and  Doan.  Witness  some- 
times works  at  farming,  when  he  cannot  get  work  to  do  at  his 
trade. 

Henry  Vancleve.  About  two  weeks  ago,  Mrs.  Stevens  told 
*witness  that  her  father  had,  eighteen  months  before,  informed 
her  that  he  had  no  will.  Witness  sat  up  with  testator  about  two 
weeks  before  his  death.  The  person  who  sat  with  him  adminis- 
tered to  him,  and,  witness  believed,  without  consulting  him. 
He  lay  still,  and  did  not  speak,  nor  did  others  speak  to  him,  as 
witness  heard.  Witness  saw  him  about  a  year  before  his  last 
sickness ;  his  memory  had  then  failed  very  much,  and  he  did  not 
know  witness ;  but,  when  his  name  was  mentioned,  he  recollected 
witness  well — his  name,  father  and  former  acquaintance — and 
made  many  inquiries  about  witness'  father  and  family. 

Captain  Amos  Hutchinson.  Knew  John  Phares  well.  He 
was  a  man  of  excellent  character  for  morality  and  truth. 

Jasper  Smith,  again.  Was  a  near  neighbor  of  John  Phares 
for  seven  or  eight  years,  and  never  heard  the  purity  of  his  char- 
acter, as  a  man  of  morality  and  truth,  questioned. 

Joseph  Scudder,  Esq.  At  Forman's  tavern,  in  the  township 
of  Trenton,  a  little  before  May  court  last,  there  was  a  trial,  in 
which  witness  was  concerned,  as  overseer  of  the  poor,  and  Major 
Stevens  was  called  as  a  witness.  At  that  time,  witness  and 
Major  Stevens  had  a  conversation  about  the  charge  which  had 
been  made  of.  stealing  the  wills.  It  commenced  by  Stevens 
asking  witness  what  kind  of  a  girl  Abigail  Coulter  was,  who- 
had  formerly  been  bound  to  witness,  and  afterwards  to  defend- 
ant. He  said  that  one  of  those  girls  was  not  smart;  that 
something  had  been  laid  to  his  charge  about  taking  the  will; 
that  there  was  nobody  who  had  any  chance  of  seeing  anything 
but  the  bound  girl,  Abigail  Coulter,  and  Joseph  Vancleve's 
daughter  and  sisters,  but  that  he  had  not  seen  the  will,  more 

*615 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  725 


Den  v.  Vancleve. 


than  he  then  saw  it,  in  his  hand — holding  his  hand  out  and 
looking  at  it. 

Mary  Vancleve,  daughter  of  the  defendant,  between  fourteen 
And  fifteen  years  old.  Heard  Mrs.  Clarke  repeatedly  say  that 
defendant  and  his  wife  must  have  a  great  deal  of  trouble  with 
testator,  and  never  heard  any  intimation  of  neglect  or  ill-treat- 
ment from  anyone,  until  after  the  wills  were  missing.  Duiing 
testator's  sickness,  Mrs.  Stevens  frequently  came  to  the  house, 
and  sometimes  staid  three  or  four  days.  The  first  part  of  the 
time  she  brought  her  clothes  in  a  band-box,  the  latter  part,  in  a 
small  trunk,  which  she  always  took  with  her  when  she  went 
away.  When  she  brought  the  trunk,  she  had  with  her,  in  her 
work-bag,  a  bunch  of  four  or  five  keys,  on  a  ring  about  the  size 
of  a  *dollar,  with  a  spring  catch  to  it,  which  witness  believed 
belonged  to  Doctor  Clarke,  because,  in  the  month  of  March  pre- 
oeding,  during  one  of  the  visits,  of  about  a  week,  which  she  made 
to  her  Aunt  Clarke,  she  had  seen  precisely  such  a  one  in  the 
doctor's  book-case;  took  it  down  and  examined  it,  and  gave  it  to 
his  little  girl  to  play  with ;  and,  though  she  had  visited  often  at 
.her  Aunt  Stevens's  and  seen  her  keys,  she  had  never  seen  such  a 
ring  there,  nor  anywhere  else.  This  ring  she  saw  in  Mrs. 
.Stevens's  work-bag,  in  the  latter  part  of  the  month  of  June,  when 
she  had  been  sent  by  her  to  get  something  for  her  out  of  the  oag. 
Doctor  Clarke  was  testator's  physician,  and,  in  the  first  part  of 
iis  illness,  came  there  frequently,  as  often  as  twice  a  week,  but  in 
the  latter  part  not  so  often.  Witness  heard  him  say  he  had  not 
been  there  in  five  weeks  before  the  will  was  missed.  He  gave  no 
reason  for  not  coming,  nor  did  witness  know  any.  Doctor  Clarke 
^H9B  generally,  but  not  always,  there  when  Mrs.  Stevens  was,  but 
when  they  did  meet  there,  they  almost  always  went  into  the 
parlor  and  had  a  private  conversation.  Witness  saw  them  leave 
testator's  room  and  go  into  the  parlor  together  as  many  as  three 
or  four  times.  Defendant's  wife  wished  Mrs.  Stevens  to  stay 
with  her  father  on  the  3d  of  August,  being  the  third  Sunday 
before  the  will  was  executed,  so  that  defendant  and  wife  might 
attend  church.  Mrs.  Stevens  agreed  to  stay  with  him  on  that 
•day,  and  came  there  on  Saturday  evening.  The  morning  being 

*616 


726  NEW  JERSEY  SUPREME  COURT.     [5 


Den  v.  Vancleve. 


bad,  defendant  declined  going  to  church,  but  Mrs.  Stevens  urged 
him,  and  he  and  his  wife  went  at  the  usual  hour,  which  was- 
about  half-past  ten  o'clock.  Witness  and  her  sister,  who  is  about 
twelve  years  old,  a  bound  girl,  a  black  woman  and  Mrs.  Stevens- 
were  left  at  home.  A  little  black  boy  was  also  there,  but 
not  in  the  house.  Soon  after  defendant  was  gone,  Mrs.  Stevens* 
gave  testator  two  teaspoonfuls  of  paregoric,  which  was  double- 
the  dose  which  the  family  frequently  gave  him  to  make  him- 
easy.  She  then  shut  the  door  of  his  room  and  went  up  stairs,, 
into  the  room  over  him,  where  there  was  a  bed,  and  a  desk  in. 
which  defendant  usually  kept  his  papers  locked  up.  As  Mrs.. 
Stevens  came  into  that  room,  witness  came  out  of  it  and  left  the 
door  open,  nor  did  witness  know  whether  Mrs.  Stevens  shut  it. 
It  had  no  lock  and  was  directly  opposite  to  the  landing  at  the 
head  of  the  stairs.  Mrs.  Stevens,  when  she  lodged  in  the  house,, 
slept  in  several  rooms,  but  never  in  that  one.  She  staid  in  that 
room  until  Major  Stevens  came  to  the  house,  *  which  was  about 
an  hour  before  defendant  and  wife  returned  home.  It  was  rain- 
ing when  he  came,  and  he  drove  his  chair  into  the  chair-house.. 
He  usually  had  his  horse  taken  out,  but  he  declined  it  on  that 
day,  both  before  and  after  defendant  returned.  When  he  came 
up,  the  black  boy  was  standing  at  the  door,  and  he  asked  where- 
his  "master  was.  The  boy  told  him  he  was  at  church.  He  then 
asked  where  the  children  were,  and  was  informed.  Mrs.  Stevens 
came  down  stairs  to  meet  him,  and  told  witness  to  go  with  her 
sisters  into  the  kitchen  and  help  the  black  woman  shell  peas,, 
which  witness  did,  and  remained  there  until  her  father  and 
mother  returned  from  church.  The  black  woman  had  the  charge 
of  getting  dinner,  and  Mrs.  Stevens  never  before  gave  witness 
such  a  direction.  Major  Stevens  and  his  wife  staid  to  dinner, 
and  immediately  after,  as  soon  as  the  rain  cleared  up,  went  away. 
Major  Stevens  said  he  had  been  at  Doctor  Clarke's  the  night  before, 
and  came  from  there.  The  conduct  of  Mrs.  Stevens  on  this  day 
did  not,  at  the  time,  strike  witness  as  singular,  or  induce  her  to 
suspect  anything,  nor  did  defendant  inquire  about  it,  nor  did 
witness  mention  it,  until  about  a  fortnight  after  defendant  com- 
plained that  the  wills  were  lost.  When  defendant  did  inquire,. 

*617 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  727 


Den  v.  Vancleve. 


she  told  him  about  it,  but  did  not  then,  or  at  any  time  tell  him, 
nor  any  one  else,  that  she  saw  Major  Stevens  or  Mrs.  Stevens  at 
the  desk.  Late  in  the  fall,  previous  to  testator's  death,  defendant 
and  witness  were  in  the  room  over  where  testator  lay  in  his  last 
illness,  and  where  the  desk  was  in  which  defendant  kept  his 
papers.  Defendant  had  the  desk  open,  and  Abigail  Coulter  came 
up  and  informed  him  that  some  person  wanted  to  see  him.  He 
went  down,  and  then  Abigail  Coulter  asked  witness  to  look  in 
the  desk  for  her  indentures,  and  see  how  old  she  was,  and  when 
she  would  be  out  of  her  time.  Witness  did  look,  and  upon 
opening  one  of  the  drawers,  saw  two  papers  folded  up  and 
sealed,  and  endorsed,  as  she  believed,  in  testator's  handwriting. 
The  upper  one  was  marked,  "Benjamin  Vancleve's  will  of 
1814."  The  under  one,  "Benjamin  Vancleve's  will  of  1809." 
Abigail  Coulter  could  not  read  writing,  and  asked  witness  what 
they  were.  Witness  informed  her  they  were  grandpa's  wills, 
and  hearing  defendant  coming  up  the  stairs,  they  left  the  desk. 
Mrs.  Stevens  came  to  defendant's  the  day  before  the  will  \va.s 
executed  and  staid  all  night.  In  the  morning  defendant  discov- 
ered that  the  wills  were  missing  out  of  his  desk,  and  sent 
wit*ness'  sister  down  stairs  to  call  Mrs.  Stevens  up  to  him.  He 
also  directed  witness  to  go  down  ;  and,  as  she  was  going  down 
the  stairs,  she  heard  her  sister  ask  Mrs.  Stevens  to  go  up  to  de- 
fendant, and  Mrs.  Stevens  replied  that  she  would,  presently; 
that  she  was  reading  to  her  fattier,  the  testator,  in  the  Bible. 
When  she  went  up,  defendant  charged'her  with  taking  the  wills. 
Soon  after  this,  Mrs.  Stevens  asked  witness  if  she  had  ever  seen 
her  at  defendant's  desk,  and  witness  told  her  no;  for  witness 
never  had  seen  either  her  or  Major  Stevens  at  it.  Soon  after 
this  conversation  Major  Stevens  drove  up,  and  Mrs.  Stevens 
went  out  into  the  yard  to  him,  and  when  they  came  in,  Major 
Stevens  said  to  defendant, "  It  was  a  will  of  your  own  making  and 
it  is  foolish  to  charge  us  with  it,  for  you  can't  prove  it."  They 
were  angry  at  being  charged  with  taking  the  wills,  and  left  the 
house  about  eight  or  nine  o'clock,  which  was  one  or  two  hours 
before  Mrs.  Phares  came,  and  the  will  was  executed.  Stephen 
Johnson  had  come  to  the  house  before  breakfast,  and  was  there  at 

*618 


728  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


that  time.  Mrs.  Phares  called  on  her  way  to  church,  and  was  asked 
in  by  defendant's  wife.  Mr.  Phares  was  sent  for  by  defendant. 
Defendant  read  the  will  over  to  testator,  and  asked  him  if  he  could 
understand  it.  He  said,  "Yes."  Defendant  asked  if  it  was  not  a 
true  copy  of  his  last  will.  He  said,  u  Yes."  Defendant  told  him  to 
speak  loud  so  the  witness  could  hear  him  ;  he  raised  his  voice  and 
said,  "  Yes,  yes,  I  say  so."  Defendant  asked  him  if  he  wished  it 
executed ;  he  said,  "  I  do."  Mr.  Phares  asked  him  if  he  should 
guide  his  hand  when  he  wrote  his  name ;  he  said  "  Yes."  Mr. 
Phares  or  defendant,  witness  did  not  recollect  which,  said  it 
would  be  necessary  for  him  to  acknowledge  it.  He  then  put  his 
finger  on  the  seal  and  said,  "  I  acknowledge  this  to  be  my  last 
will  and  testament."  He  tfyen  took  Mr.  Phares  by  the  hand  and 
shook  it,  and  seemed  to  be  very  much  exhausted.  Witness  could 
not  say  whether  it  was  hard  for  strangers  to  understand  him 
when  he  spoke,  but,  being  well  acquainted  with  him,  she  under- 
stood him  perfectly,  and  did  so  at  the  time  the  will  was  exe- 
cuted. During  all  his  last  sickness,  until  the  Friday  before  his 
death,  he  was  capable  of  speaking,  of  asking  and  answering 
questions,  and  often  talked  to  Mrs.  Clarke,  and  asked  her  why 
the  doctor  did  not  come  to  see  him.  He  had  the  possession  of 
his  understanding  after  the  attack,  and  when  the  will  was  exe- 
cuted, as  he  had  before.  On  Monday,  the  day  after  the  execu- 
tion, Mrs.  Clarke  *came,  and,  in  conversation  with  defendant, 
said,  "  Let  who  would  have  taken  the  wills,  she  would  take  her 
oath  her  sister  Phebe  never  took  them."  She  also  asked  witness 
what  the  testator  said  the  day  before,  and  witness  replied,  "  He 
said  enough."  The  next  day  Major  Stevens  and  wife  came  to 
the  house  and  went  in  to  see  testator.  Mrs.  Stevens  took  hold 
of  his  hand  three  several  times,  and  he  drew  it  away  each  time 
and  laid  it  on  his  breast,  and  groaned  very  hard.  Witness  never 
heard  such  groans.  The  next  day  but  one,  Mrs.  Clarke  came 
again.  Mrs.  Charity  Smith  was  there  and  high  words  passed 
between  her,  Mrs.  Clarke,  and  defendant's  wife.  Defendant 
told  Mrs.  Clarke  that  she  took  the  will ;  she  replied,  "  I  don't 
care  if  I  did ;  it  was  no  more  than  you  would  have  done  if  you 
had  had  the  same  chance."  Defendant  told  her  she  knew  that 

*619 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  729 


Den  r.  Vancleve. 


testator  had  given  him  his  land  in  all  the  wills.  She  replied,  "  I 
know  it,  and  we  want  none  of  your  land."  He  asked ;  "  Then, 
Betsey,  what  do  you  want  ?"  To  this  she  made  no  answer. 

In  1814  witness  saw  testator  write  a  will,  and,  after  it  was 
done,  her  little  sister  asked  him  what  he  would  give  her.  He 
told  her  he  would  give  her  something ;  that  he  had  given  her  pa 
the  farm,  and  he  expected,  after  her  pa's  death,  that  her  little 
brother,  Benjamin,  would  have  it.  Witness  told  Mrs.  Clarke 
and  Mrs.  Stevens  that  testator  had  made  a  will,  soon  after  it  was 
done,  in  1814. 

After  Mr.  Potts  had  been  to  see  testator,  witness  heard  defend- 
ant tell  Mrs.  Stevens  that  Potts  had  been  there  about  the  Mon- 
mouth  property,  and  that  testator  had  expressed  a  wish,  in  his 
will,  that  none  of  his  children  should  call  on  the  Potts'  about 
it.  She  said  that  testator  had  always  told  Mr.  Stevens  that  he 
intended  that  property  for  his  children. 

Abigail  Coulter,  between  sixteen  and  seventeen  years  of  age, 
was  offered  as  a  witness,  whereupon  the  counsel  for  the  plaintiff" 
requested  that  she  be  first  interrogated  whether  she  had  ever  been 
sworn  in  court  and  understood  the  nature  and  obligations  of  an 
oath.  The  court  declined  interrogating  her,  and  she  was  sworn. 

In  the  fall  before  testator  died,  she  asked  Mary  Vancleve  to 
read  her  indentures  to  her.  In  looking  for  them,  Mary  opened 
a  drawer  and  took  up  two  large  papers,  which  witness  supposed 
to  be  letters,  and  asked  what  they  were.  Mary  said  they  were 
her  grandpa's  wills.  A  few  Sundays  before  testator  died,  and 
*when  Mrs.  Stevens  was  at  defendant's,  Major  Stevens  came ;  it 
was  raining  and  he  drove  his  chair  into  the  chair-house.  Wit- 
ness was  standing  at  the  end  of  the  house,  where  he  did  not  see 
her,  and  as  he  came  near  the  door  he  asked  a  little  black  boy, 
belonging  to  defendant,  where  his  master  and  mistress  were.  The 
boy  aaid,  "  Gone  to  meeting."  He  asked,  "  Where  are  the  chil- 
dren?" The  boy  said,  "They  are  at  home."  He  then  went 
into  the  house  and  was  there  until  after  dinner.  Mary  was,  part 
of  the  time,  before  her  father  and  mother  returned,  in  the  kitchen, 
shelling  peas.  On  a  Sunday,  some  time  after  this,  witness  heard 
defendant  and  Major  Stevens  talking  about  the  wills,  and  Major 

*620 


730  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


Stevens  said :  "  It  is  foolish  to  accuse  us  of  taking  the  willsr 
for  you  cannot  prove  it."  Witness  never  saw  Major  Stevens  in 
the  room  where  the  wills  were,  nor  ever  told  anybody  that  she 
did  see  him  there.  She  never  saw  anybody  take  the  wills. 

Mrs.  Rachel  Coulter,  the  mother  of  Abigail,  met  Mrs.  Stevens 
in  the  street,  the  latter  part  of  last  August,  and  she  asked  wit- 
ness home  with  her.  In  the  conversation  at  Mrs.  Stevens's  house,, 
she  told  witness  she  wanted  her  to  bring  Abigail  to  see  her,  and 
if  she  could  not  come,  then  witness  should  talk  to  her,  and  see 
if  she  knew  anything  about  the  wills;  that  they  had  taken  her 
to  Flemington,  as  a  witness ;  and  Mrs.  Stevens  asked  witness  if 
Kne  thought  a  person,  at  the  lower  end  of  the  garden,  could  see 
anyone  take  a  will  out  of  the  desk  in  an  upper  room.  Nobody 
was  present  at  this  conversation  but  a  black  woman,  whom  Mrs. 
Stevens  called  in  to  tell  witness  how  Joseph  Vancleve  treated 
her  children.  After  this,  Mrs.  Stevens  left  a  message  with  Mrs. 
Brown  for  witness  to  call  on  her ;  witness  did  call,  but  she  was 
not  at  home.  Witness  had  a  little  girl  at  Mr.  Jones's,  which  she 
had,  some  time  before,  wished  to  put  somewhere  else,  and  on  the 
Friday  preceding  the  trial,  about  eight  o'clock  at  night,  Major 
Stevens  called  on  her  at  Mr.  Moore's,  who  lives  seven  or  eight 
miles  from  Trenton,  and  told  her  he  would  buy  the  child's  time. 
Witness  did  not  know  what  they  intended  to  prove  by  Abigail, 
until  Mrs.  Stevens  told  her;  nor  did  she  leave  word  at  Mrs. 
Brown's  that  she  wanted  to  see  Mrs.  Stevens  to  get  her  to  take 
her  little  girl ;  nor  had  she  any  conversation  at  Mrs.  Brown's 
with  Mrs.  Stevens,  respecting  Abigail's  testimony. 
Here  the  defendant  rested,  and  the  plaintiif  called — 
*William  Hamilton,  who  testified  that  he  had  known  tes- 
tator since  1788,  but  not  much  of  late  years.  Witness  lived  at 
this  end  of  Middlesex,  until  last  April  a  year  ago,  when  he 
moved  to  Lawrenceville.  Before  testator  was  taken  down  he 
came  over  to  Middlesex  to  get  some  work  done,  and  seemed  very 
smart.  The  May  before  he  died  witness  called  at  the  house,  on 
Sunday  morning,  between  eight  and  nine  o'clock,  and  being  in 
the  room  with  defendant,  they  heard  a  shuffling  in  the  entry, 
and  defendant  said  that  testator  had  been  quite  unwell,  but  had 

*621 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  731 


Den  c.  Vancleve. 


got  better ;  that  his  recollection  was  feeble,  and  his  memory  had, 
seemingly,  left  him.  Testator  came  in  with  a  small  cane,  and 
defendant  asked  him  if  he  knew  witness.  He  looked  round,  and 
up  to  the  ceiling,  and  said  he  did  not.  Defendant  then  told  him 
that  witness  was  John  Hamilton's  son.  He  recollected  witness* 
father,  and  asked  where  witness  lived.  Witness  told  him  on 
the  lot  next  the  church,  and  his  recollection  then  seemed  to  come 
to  him,  and  he  mentioned  who  had  lived  on  that  lot  for  a  number 
of  years  past.  On  the  Sunday  after  testator's  burial  witness  was 
sitting  with  defendant  and  his  wife  in  their  entry,  and  defendant 
said  that  his  father's  wills  of  1809  and  1814  had  been  stolen; 
that  they  were  together  in  a  drawer  or  pigeon-hole  in  his  desk, 
and  that  a  will  of  1775  lay  on  one  side  of  them,  and  a  copy  of 
the  will  of  1814,  drawn  by  Charles  Ewing,  on  the  other;  but 
these  were  left.  When  he  missed  the  wills  he  sent  his  eldest 
daughter  to  call  his  sister,  Mrs.  Stevens,  up  to  him,  and  when 
she  came  he  was  standing  by  the  desk,  and  her  countenance 
seemed  as  if  she  knew  what  she  was  sent  for ;  she  looked  guilty 
and  condemned,  and  took  her  seat  on  the  bed.  He  then  said  to  her, 
"  What  devilish  thing,  Phebe,  is  this  you  have  been  doing ;  you 
have  been  taking  my  father's  wills  out  of  the  desk."  She  denied 
it.  He  continued  to  charge  her  with  it,  and  she  burst  out  crying 
and  went  down  stairs,  and  meeting  Mary  asked  her  if  she  saw 
her  at  Jier  father's  desk  when  he  went  to  meeting,  and  Mary  an- 
swered, "  No,  aunt,  I  did  not  see  you  at  the  desk."  Witness  then 
said,  "  If  you  are  so  sure  she  took  it,  if  Mary  had  answered  her 
yw,  you  would  have  brought  her  to  confession,  and  found  it  all 
out."  Defendant  replied  that  would  have  been  a  lie,  and  he  did 
not  wish  her  to  tell  a  lie  about  it.  That  there  was  nobody  about 
but  the  children,  and  they  were  playing  about,  and  knew  nothing 
of  it,  and  had  no  mistrust.  His  wife  had  told  him  that  Mrs. 
Ste*vens  had  a  bunch  of  keys,  and  she  suspected  something 
wrong,  and  was  afraid  she  meant  to  take  her  father's  wills.  He 
replied,  "  My  God,  you  do  not  suppose  people  would  steal ;"  but 
he  now  thought  if  he  had  taken  his  wife's  advice,  he  would  still 
have  had  the  wills. 

Mrs.  Hannah  Davison.  In  the  fall  after  testator's  death,  John 

*622 


732  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


Phares  was  at  her  house  and  had  a  conversation  with  John  Davi- 
son,  her  husband,  which  she  heard,  but  to  which  she  was  not 
particularly  attentive.  Davison  asked  him  if  testator  was  sen- 
sible what  he  was  doing  when  he  made  the  will.  He  replied,  "  I 
hardly  know."  Davison  asked,  "  Could  he  speak  ?"  Phares  re- 
plied, "  Not  distinctly."  "  Could  he  write  his  name  ?"  "  I  guided 
his  hand."  "  Are  you  not  sorry  for  what  you  have  done  ?" 
"  No ;  it  amounts  to  nothing,  and  I  did  it  to  pacify  the  family." 

John  Davison.  At  witness'  house  in  the  fall  after  testator 
died,  had  a  conversation  with  John  Phares.  Witness  asked  him 
if  testator  was  capable  of  making  a  will.  He  answered,  "By  no 
means  whatever."  Witness  asked,  "  Could  he  speak  ?"  He  re- 
plied that  he  appeared  to  revive  and  make  a  noise  so  that  they 
thought  they  could  understand  him.  "  Could  he  sign  his  name  ?" 
"  He  could  not ; "  he  (Phares)  took  his  hand,  guided  the  pen, 
and  wrote  his  name.  Witness  asked  him  if  he  thought  he  did 
right.  He  answered  that  he  thought  it  of  no  effect  one  way  or 
the  other,  and  he  did  it  to  oblige  the  family.  Witness  was,  at 
that  time,  in  business  with  Major  Stevens,  and  felt  considerable 
interest  in  this  matter,  and  talked  a  good  deal  and  expressed 
his  opinion  about  it.  Phares  was  then  at  work  at  his  trade  for 
the  firm  of  Davison  &  Stevens,  and  knew  witness'  opinion. 

Gideon  Smith.  Lived  for  fifteen  years  within  a  mile  and  a 
quarter ;  had  been  acquainted  with  testator  as  long  as  he  could 
remember,  and  worked  for  defendant  more  or  less  every  summer 
for  two  or  three  years  before  testator's  death.  Helped  defendant 
mow  and  cut  his  oats  in  the  July  before  testator  died,  and  at 
that  time  ate  with  the  family  but  slept  at  home.  Witness  very 
often,  almost  every  time  he  was  in  the  house,  saw  testator,  and 
once  spoke  to  him,  but  never  heard  him  speak  or  attempt  to  do 
it,  nor  take  any  notice  of  witness.  He  lay  like  a  child,  alto- 
gether incapable  of  business.  Witness  helped  defendant  and  his 
wife  twice  to  move  him  out  of  his  bed  and  change  the  bed  and 
clothes ;  and  once  defendant  asked  him  if  he  knew  witness,  *but 
he  neither  looked  up  nor  made  any  answer ;  he  groaned,  and  lay 
as  if  there  was  just  life  in  him.  Witness  was  frequently  there 
the  two  years  preceding  his  death,  and  he  often  asked  witness' 

*623 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  733 


Den  v.  Vancleve. 


name,  and  who  his  father  was,  sometimes  more  than  once  in  an 
hour,  but  when  told  he  knew  witness.  Defendant  had  the  whole 
care  and  management  of  the  farm,  and  hired  and  paid  for  the 
work,  and  when  testator  would  sometimes  come  out  to  the  field 
and  give  directions  about  the  work  defendant  would  tell  us  not 
to  mind  him,  he  was  childish.  Sometimes  defendant  would  snap 
him  up  and  speak  short  to  him,  and  then  he  would  turn  away 
and  say  no  more  for  some  time. 

Thomas  Ivins.  Between  November  and  January  last  saw 
defendant  at  Burke's  tavern,  where  many  persons  were  in  and 
out,  and  heard  him  talk  to  Mr.  Burke  and  others  about  the  loss 
of  the  wills.  He  told  a  long  story  about  it  which  witness  could 
not  well  recollect,  but  he  remembered  that  he  said  he  was  certain 
in  his  own  mind  that  his  sister,  Mrs.  Stevens,  took  it ;  that  she 
had  a  large  bunch  of  keys  there  which  he  thought  ought  to 
have  been  at  home  where  her  husband  was.  He  did  not  then 
accuse  any  other  person. 

Mrs.  Catharine  Ivins,  formerly  Catharine  M'Galliard,  had,  at 
different  times,  lived  six  or  seven  years  with  Mrs.  Stevens,  and 
lived  there  when  married,  two  years  and  a  half  ago ;  had  known 
testator  eleven  or  twelve  years.  The  first  part  of  that  time  he 
came  every  week,  and  sometimes  two  or  three  times  a  week,  to 
see  his  daughter,  and  seemed  fond  of  her  and  her  husband.  He 
was  treated  by  them  with  affection,  and  always  invited  to  stay, 
and  eat  and  sleep.  Within  four  or  five  years  of  his  death  his 
faculties  failed,  he  was  very  weak,  and  Mrs.  Stevens  often  went 
within  sight  of  his  house  with  him  lest  he  should  fall  down  and 
not  be  able  to  get  up.  At  this  time  he  forgot  witness,  and  always 
asked  his  daughter  what  young  woman  she  had  there.  Witness 
lived  two  years  with  Mrs.  Clarke  after  her  marriage,  which  was 
ten  or  eleven  years  ago,  and  testator  often  came  there,  and  they 
appeared  fond  of  each  other.  He  said  Phebe  married  early,  but 
Betsey  staid  so  long  with  him  that  he  felt  quite  lost  without  her ; 
it  was  not  now  at  his  house  as  it  used  to  be ;  he  missed  her,  but 
she  was  well  married,  had  a  kind  husband,  and  he  was  satisfied ; 
that  he  was  pleased  with  the  husbands  of  both  his  daughters. 
He  wis  often  pressed  to  stay  all  night,  but  *as  he  had  a  home  he 

*624 


734  NEW  JERSEY  SUPREME. COURT.      [5  LAW 


Den  v.  Yancleve. 


would  stick  to  it,  he  liked  his  own  bed  best.  Witness  considered 
him  an  affectionate  father  and  them  affectionate  daughters ;  he 
was  never  treated  by  them  but  with  affection  and  respect. 

Miss  Ann  Brearley.  Doctor  Clarke  was  testator's  physician, 
but  in  July  and  August,  1817,  before  testator's  death,  he  was 
confined  from  four  to  six  weeks  to  his  house,  and  principally  to 
his  room,  by  the  kick  of  a  horse.  Witness  had  resided  in  Doctor 
Clarke's  family  since  April,  1817,  and  had  access  to  the  book- 
case, and  to  every  part  of  the  house,  and  never  saw  there  a  ring 
for  keys  with  a  spring  catch.  There  are  two  small  keys  and  one 
large  one,  fastened  together  by  a  string,  for  the  book-case.- 

Daniel  Cook,  Esq.  Was  brought  up  within  one  and  two 
miles  of  testator,  and  knew  him  well  twenty-five  or  thirty  years. 
In  April,  1815,  witness  was  assessor  of  the  direct  tax,  and  called 
at  testator's.  He  asked  witness  who  he  was,  and  his  father,  and 
where  he  lived,  and  seemed  to  forget  witness7  father.  He  asked 
witness  what  his  business  was,  and  when  witness  told  him,  he 
said  Joseph  must  be  sent  for,  as  he  did  not  or  could  not  do  any 
business.  Joseph  was  sent  for,  and  the  property  given  in,  but 
whether  testator  or  Joseph  signed  it,  witness  could  not  recollect. 
In  the  November  following,  witness  called  to  invite  to  Daniel 
Lanning's  funeral.  Testator  came  to  the  door,  and  inquired 
who  Lanning  was,  and  who  his  father  was,  and  where  he  lived. 
Lanning  was  brought  up  within  two  and  three  miles  of  testator, 
and  testator  was  intimately  acquainted  with  his  family.  Witness 
observed,  on  his  return  home,  that  his  memory  was  gone,  and  he 
had  become  childish.  At  this  time,  testator  walked  to  the  gate 
with  witness,  and  informed  witness  that  Charles  Moore,  who 
lived  about  a  half  or  three-quarters  of  a  mile  off  had  offered  his 
farm  for  sale  for  $50  per  acre,  which  testator  said  was  very 
cheap,  and  advised  witness  to  buy  it.  Witness  did  soon  after 
buy  it,  for  another  person,  at  public  vendue,  at  $50.25  per  acre. 

Laban  Dickinson.  About  two  years  before  the  trial,  taught 
school  in  the  neighborhood,  and  boarded  with  his  employers ; 
saw  defendant  once  at  the  house  of  John  Phares,  and  was  asked 
to  visit  him.  Defendant  said  that  his  father  was  once  very 
capable  of  business,  but  had  now  become  a  child,  and  forgetful, 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  735 


Den  t.  Vancleve. 


and  did  not  know,  but  often  asked,  the  names  of  his  children 
and  *grandchildren,  who  lived  in  the  house  with  him.  In  the 
June  before  testator  died,  witness  went  with  Phares  to  see  de- 
fendant. They  saw  testator  at  the  door  for  a  couple  of  minutes, 
and  defendant  told  him  who  they  were;  after  which,  testator 
went  into  one  room  and  they  into  another,  and  they  saw  no  more 
of  him. 

Mrs.  Phares,  again.  When  testator  signed  the  will,  he  had 
his  spectacles  on,  but  witness  did  not  recollect  who  put  them  on. 

Mrs.  Sarah  Reeder,  wife  of  Andrew  Reeder.  Had  long  been 
acquainted  with  Charity  Smith,  and  very  intimate  with  her  for 
five  or  six  years  past.  She  is  upwards  of  eighty  years  old,  and 
rather  remarkable  for  her  superiority  of  intellect  for  her  time  of 
life.  She  always  stood  high  as  a  woman  of  sense  and  truth,  and 
witness  never  heard  her  truth  called  in  question.  Within  a 
year  past  her  health  had  declined  a  little,  and  her  mind  was  not 
quite  so  active,  but  she  was  still  smart  for  her  age.  Within  four 
days  after  the  death  of  testator,  she  told  witness  that  the  two 
former  wills  were  stolen,  and  they  had  made  a  third  will,  within 
a  few  days  before  his  death,  but  she  did  not  think  it  would  avail 
them  anything.  She  also  said  that  somewhere  about  a  week 
before  his  death,  an  old  Dutchman,  by  the  name  of  Carson,  who 
had  lived  with  him  eight  years,  and  been  absent  about  one  year, 
returned,  and  went  into  his  room,  but  could  not,  in  any  way, 
make  testator  sensible  who  he  was,  and  was  much  grieved  at  it. 
She  also  said  that  testator,  before  his  death,  wished  to  be  raised 
up,  but  Mrs.  Vancleve  told  him  that  he  could  not,  and  that  he 
could  not  be  sensible  of  his  situation,  or  he  would  not  wish  to  be 
raised  up. 

Stephen  Johnson.  Did  not  recollect  whether  he  had  his  spec- 
tacles on,  but  thought  he  was  raised  up,  when  he  came  in  the 
room,  and  had  pillows  behind  him. 

Waters  Smith.  Was  eighty  years  old — something  older  than 
testator ;  married  his  sister,  and  was  a  near  friend  and  neigh- 
bor; and  testator  visited  witness  often  in  his  well  days,  but 
witness  did  not  recollect  when  he  ceased  to  visit.  Testator  told 
witness  that  he  furnished  half  the  money  to  pay  for  the  lands 

*625 


736  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


that  Joseph  bought  of  the  heirs  of  John.  Testator  formerly 
used  tobacco  immoderately,  and  chewed  considerable  the  latter 
part  of  his  time.  Testator  walked  very  weak  and  shuffled  along 
before  he  was  taken  down.  After  he  was  taken  down,  witness 
visited  him  three  or  four  times,  and  spoke  to  him  ;  but  whether 
*he  spoke  to  witness,  witness  could  not  tell,  though  he  did  not 
think  he  did ;  but  he  seemed,  by  the  motion  of  his  eyes,  as  if  he 
knew  witness.  Witness  was  hard  of  hearing,  but  thought  his 
own  memory  tolerably  good.  John  Stevens  is  the  son  of  wit- 
ness' only  sister. 

Charles  Brown.  Mrs.  Stevens  told  witness'  wife  to  let  her 
know  when  Mrs.  Coulter  came  to  his  house.  She  did  so  about 
the  beginning  of  June,  and  Mrs.  Stevens  came  over  and  said  to 
Mrs.  Coulter  she  understood  Mrs.  Coulter  had  a  daughter  wha 
was  coming  to  prove  that  she  had  stolen  some  will,  and  she 
wished  her  to  advise  her  daughter,  as  a  mother  ought,  of  the 
nature  of  an  oath,  and  to  speak  nothing  but  the  truth.  She  said 
nothing  about  taking  the  little  girl.  Jones  had  brought  the  girl 
to  witness'  house,  and  wished  witness  to  buy  her  time  of  him. 

Mrs.  Elizabeth  Brown.  Mrs  Coulter's  little  girl  was  anxious 
that  witness  should  take  her,  as  both  she  and  her  mother  wished 
her  to  leave  Mr.  Jones.  By  this  means,  witness  became  ac- 
quainted with  Mrs.  Coulter,  who  had  since  been  at  her  house 
four  times.  Mrs.  Stevens  requested  witness  to  let  her  know  when 
she  came  there.  She  did  so,  and  Mrs.  Stevens  came  over  and 
told  Mrs.  Coulter  she  had  heard  her  daughter  Abby  was  com- 
ing to  swear  against  her  or  Mr.  Stevens  about  taking  the  will ; 
that  it  was  her  duty  to  advise  her  daughter  to  speak  the  truth, 
and  nothing  but  the  truth  ;  that  she  wanted  no  favors — all  she 
asked  was  the  truth.  Mrs.  Coulter  said  she  would  see  Abby,  as 
she  was  sure  she  did  not  know  anything  about  it.  About  three 
weeks  before  the  trial,  Mrs.  Coulter  called  at  witness'  and  asked 
if  Mrs.  Stevens  was  at  home.  Witness  said  she  did  not  know. 
She  then  went  over  and  soon  came  back,  and  said  Mrs.  Stevens 
was  not  at  home,  and  Mr.  Stevens  answered  her  very  short ;  she 
supposed  he  did  not  know  who  she  was.  She  left  no  message 
for  Mrs.  Stevens. 

*626 


2  Souru.]         SEPTEMBER  TERM,  1819.  737 


Den  t.  Vancleve. 


Garret  D.  Wall,  Esq.  The  observation  related  by  Mr.  Potts 
in  his  testimony,  as  made  by  Major  Stevens  in  witness'  office, 
was  made  by  him  in  answer  to  a  jocular  remark  made  by  some 
person  present,  that  Joseph  Vancleve  charged  his  wife  with 
taking  the  will,  and  would  prove  it  by  his  daughter  and  bound 
irirl.  Major  Stevens  answered,  seriously,  that  it  was  impossible 
their  story  could  be  true ;  that  it  was  impossible  for  them  to  have 
seen  him,  through  the  window  in  the  chamber,  at  the  desk. 

*Major  John  Phillips,  again.  The  land  conveyed  by  testator 
to  John  was  about  eighty  acres  east  of  the  road,  and  twenty  acres 
of  wood  west  of  it.  The  whole  farm  was  said  to  lay  for  two 
hundred  and  fifty-four  acres,  and  was  so  given  in  to  assessors,  but 
witness  supposed  there  were  between  two  hundred  and  sev- 
enty and  three  hundred,  and  that  it  was  worth  between  $60  and 
$65  per  acre.  The  house,  barn  and  principal  improvements  were 
put  on  by  testator  more  than  twenty  years  ago.  Joseph  had 
brushed  it  up  some,  and  put  on  a  crib  and  some  small  improve- 
ments. He  had  no  property  independent  of  his  father.  Tes- 
tator, for  two  or  three  years  before  his  death,  altered  materi- 
ally, both  in  body  and  mind,  and  lost  his  memory  and  recollec- 
tion very  much. 

Rebecca  Reed.  Lives  with  Major  Stevens.  On  Friday  last 
he  returned  home  before  tea,  and  as  he  sat  down  to  the  table  the 
town-clock  struck  seven.  Benjamin  Moore  lives  seven  miles  from 
Trenton. 

Doctor  Joseph  Phillips.  Was  intimately  acquainted  with  testa- 
tor, and  was  once  in  his  room,  about  five  minutes,  six  or  eight 
days  after  the  paralytic  stroke.  When  witness  went  in  his  name 
was  mentioned,  and  testator  looked  up  and  put  out  his  hand  to 
shake  hands  with  witness,  but  did  not  speak.  After  the  wills 
were  missing,  and  before  testator's  death,  defendant  told  witness 
once,  and  perhaps  ofteher,  that  he  believed  his  sister,  Mrs.  Stevens, 
had  taken  them.  In  a  subsequent  conversation,  perhaps  three  or 
four  weeks  after,  he  told  witness  that  he  had  changed  his  opinion, 
and  he  now  believed  that  Major  Stevens  took  the  wills ;  but  he 
did  not,  on  either  occasion,  tell  the  reason  for  his  belief.  Wit- 
ness is  on  very  intimate  terms  with  the  defendant.  Testator's 
*627  47 


738  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


faculties,  particularly  his  memory,  were  much  impaired.  Doctor 
Clarke  was  his  family  physician,  but  was  not  able  to  attend  him 
in  his  last  illness,  and  Doctor  Vancleve  called  to  see  him  as  a 
relation. 

Charles  Reeder.  Was  a  witness  to  a  will  made  by  testator  in 
1814.  About  ten  o'clock,  on  the  Sabbath  before  testator's  death, 
as  witness  was  going  to  church  in  a  chair  with  Mrs.  Reeder,  he 
saw  defendant  come  on  foot  out  from  Mr.  Phares's,  and  asked 
him  how  his  father  was ;  he  replied,  "  Very  poorly ; "  he  did  not 
think  he  could  live  more  than  two  or  three  days.  Witness  and 
defendant  had  a  difference  about  a  line  since  1814,  and  witness' 
Uncle  Andrew  and  defendant  had  some  very  harsh  words  about  it. 

*Charles  Ewing,  Esq.  In  1814  defendant  brought  to  witness 
a  will  of  some  years'  precedent  date,  and  informed  him  that  tes- 
tator wanted  some  alterations  made  so  as  to  guard  against  the 
claims  of  his  daughters  to  the  Monmouth  property.  Witness 
made  a  draft  according  to  the  instructions  and  directed  defend- 
ant to  get  his  father  to  copy  it.  Witness  never  saw  testator 
about  this  will  nor  received  any  written  instructions  from  him 
concerning  it.  Could  not  speak  with  any  great  certainty  about 
the  provisions  of  the  former  will,  but  his  impression  was  that 
the  land  was  given  in  it  to  defendant.  The  will  now  in  dispute 
is  the  draft  witness  made. 

Doctor  Nicholas  Bellville.  Had  not  seen  testator  while  he 
was  sick,  and  could  speak  of  his  situation  and  disease  only  from 
the  representations  of  the  witnesses.  He  understood  that  one 
side  was  inanimate  and  that  he  lay  several  weeks  incapable  of 
speaking.  If  this  were  so,  his  mind  must  have  been  destroyed, 
so  that  he  could  not  dispose  of  his  property  ;  his  disease  was  in 
his  head  and  brain.  An  affection  of  the  palsy  may  be  partial, 
but  where  the  head  is  affected  it  generally  affects  and  deranges 
the  mind.  There  may  be  exceptions  to  all  general  rules,  but  it 
would  be  a  strange  exception  if  Benjamin  Vancleve  had  any 
considerable  share  of  mind  left.  His  living  a  considerable  time 
is  no  evidence  that  his  mind  was  not  affected. 

Joseph  Bullock  attended  the  court  as  a  witness  for  defendant. 
About  five  or  six  weeks  after  testator's  death  witness  called  to  see 

*628 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  739 


Den  v.  Vancleve. 


•defendant,  and  defendant  said  that  his  sister  Phebe  had  taken 
the  wills.  Witness  said  he  did  not  want  to  hear  anything  about 
it,  it  was  a  serious  piece  of  business,  and  asked  him  if  there  were 
any  keys  lying  about  that  she  could  use.  He  replied  there  was 
a  closet  key  which  would  open  the  desk,  and  which  she  knew  as 
well  as  he ;  that  he  had  called  her  up  stairs  and  accused  her,  and 
her  countenance  betrayed  her  and  he  was  sure  it  was  her.  About 
a  month  or  six  weeks  after  this,  witness  called  there  again.  De- 
fendant then  said  that  he  was  certain  Phebe  was  clear,  but  that 
the  major  had  taken  it,  and  that  he  had  told  Mr.  Stockton  so ; 
that  he  could  not  actually  prove  that  he  took  it,  but  could 
prove  by  the  girls,  his  daughters,  and  Abigail  Coulter  that  he 
had  been  seen  at  the  desk,  and  since  he  had  found  this  out  they 
•did  not  make  such  a  racket  about  it.  Witness  said  he  wondered 
he  had  not  found  that  out  before  he  charged  it  on  Phebe.  He 
re*plied  that  the  girls  were  children  and  said  nothing  about  it 
and  he  did  not  think  to  ask  them  ;  that  they  were  in  the  garden 
and  saw  him  at  the  desk.  Since  that  time  defendant  has  always 
said  it  was  the  major,  and  he  did  not  think  that  he  would  appear 
in  court.  Since  testator's  death,  defendant  told  witness  that  by 
the  first  will  Betsey,  who  was  then  single,  had  a  legacy  of  $600 
and  certain  privileges  in  the  house.  After  the  first  conversation 
witness  saw  Mrs.  Stevens  and  told  it  to  her ;  and  after  the  second 
he  saw  Major  Stevens  in  Trenton  and  told  it  to  him,  and  the 
major  replied,  "  He's  a  fool ;  I've  not  been  there  this  three  years." 
Witness  was  in  the  habit  of  visiting  at  testator's  and  was  well 
known  to  him,  but  witness  had  not  seen  him  for  the  space  of  a 
year,  when  he  called  there,  about  a  year  before  his  death,  when 
witness  was  much  struck  with  his  alteration  and  the  failure  of 
his  memory.  He  did  not  know  witness,  but  being  told  who  he 
was  recollected  witness  and  inquired  for  his  father.  Witness 
told  him  he  had  been  dead  a  year.  After  staying  a  little  time 
witness  was  about  to  go  away,  when  testator  told  him  to  tell  his 
"  daddy  "  to  come  and  see  him.  Witness  had  a  curiosity  to  see 
how  testator's  judgment  was  and  asked  him  what  he  thought  of 
his  horse,  and  if  he  would  trade.  He  said  no,  he  left  all  those 
things  to  his  son.  Witness  then  asked  testator  the  age  of  his 

*629 


740  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


horse ;  he  examined  his  mouth  and  told  his  age  very  exactly. 
Witness  supposed  if  testator  had  paid  him  $100  he  would  have 
forgot  it  in  a  few  minutes  and  paid  it  over  again.  His  memory 
had  altogether  failed. 

Richard  Stockton,  Esq.     The  first  week  in  March  last  defend- 
ant came  up  with  witness  in  the  road  and  said,  "  Mr.  Stockton  I 
told  you  that  my  sister  had  taken  the  wills ;  I  have  altered  ray 
opinion,  and  I  believe  now  it  was  Major  Stevens  who  did  it." 
Here  the  plaintiff  rested  and  the  defendant  called  again — 
Frazee  Ayers,  who  was  at  Doctor  Clarke's  in  July,  1809 ; 
and  then  Doctor  Clarke  was  married  to  his  present  wife,  one  of 
the  lessors. 

The  testimony  on  both  sides  being  closed,  the  cause  was  very 
ably  and  eloquently  summed  up  to  the  jury.  Watt  opened  for 
the  plaintiff;  Attorney-General  and  Ewing  answered  for  the  de- 
fendant, and  R.  Stockton  replied  for  the  plaintiff. 

Before  the  argument  was  finished,  Justice  Southard  left  the 
court  to  attend  a  distant  circuit. 

*As  the  argument  progressed,  the  plaintiff  offered  Sally  Howey 
as  a  witness,  she  having  just  been  brought  from  Philadelphia. 
She  testified  that  she  had  worked  in  Doctor  Clarke's  family  eight 
years  and  left  it  last  March.  There  was  in  the  house  no  bunch 
of  keys  with  a  ring  and  catch.  There  were  some  loose  keys- 
about  the  house ;  but  there  was  only  one  bunch  which  belonged 
to  the  book-case,  and  that  had  one  large  and  two  small  keys, 
on  it. 

The  chief-justice  directed  the  constable  to  be  sworn  to  attend 
the  jury  without  charge ;  but  the  counsel  of  the  plaintiff  ex- 
pressing a  strong  desire  for  a  charge,  he  did,  in  a  few  words, 
state  the  law  applicable  to  the  case. 

The  jury  found  a  verdict  of  not  guilty ;  whereupon,  R.  Stock- 
ton, for  the  plaintiff,  moved  a  rule  to  show  cause  why  the  verdict 
should  not  be  set  aside,  and  stated,  as  reasons — 1.  .That  the 
court  had  erred  in  the  admission  of  illegal  evidence.  2.  That 
the  verdict  was  contrary  to  law  and  evidence. 

*630 


SOUTH.]          SEPTEMBER  TERM,  1819.  741 


Den  r.  Vancleve. 


This  rule  was  granted  and  the  following  reasons  subsequently 
filed: 

1.  The  court  permitted  unlawful  evidence  to  be  given  to  the 
jury,  to  wit: 

1.  Divers  conversations  and    communications   of  Benjamin 
Vancleve,  the  ancestor,  with  different  persons,   from  1802  to 
1814,  for  the  purpose  of  proving  his  original  intention  to  leave 
the  premises  in  question  to  the  defendant ;  which  parol  commu- 
nications were  irrelevant  and  calculated  to  lead  the  jury  from  the 
single  point  upon  which  the  title  of  the  defendant  depended, 
that  is  to  say,  the  testamentary  capacity  of  the  said  Benjamin 
Vancleve  on  the  26th  of  August,  1817. 

2.  Parol  evidence  of  the  contents  of  divers  alleged  wills  of 
Benjamin  Vancleve,  without  the  production  of  those  wills  and 
"without  the  defendant's  having  first  sufficiently  accounted  for  the 
non-production  of  such  wills. 

2.  On  the  trial  of  the  cause  the  court  refused  to  examine  or 
permit  to  be  examined,  previously  to  her  being  sworn  as  a  wit- 
ness, one  Abigail  Coulter,  a  witness  produced  on  the  part  of  the 
defendant,  in  relation  to  her  knowledge  of  the  nature  and  obli- 
gation of  an  oath,  although  it  appeared  that  she  was  only  of  the 
age  of  sixteen  years ;  was  a  servant  bound  to  the  defendant  by 
the  overseers  of  the  poor  of  the  township   of  Lawrence,  and 
*then  living  with  him  as  such  servant,  and,  as  the  plaintiff 
.alleged,  had  never  been  before  sworn  or  examined  as  a  witness. 

3.  The  verdict  was  against  the  charge  of  the  court  to  the 
jury. 

4.  The  verdict  was  against  the  evidence  given  in  the  cause. 

5.  The  lessors  of  the  plaintiff,  heirs-at-law  of  Benjamin  Van- 
cleve, under  whom  both  parties  claim,  were  entitled  to  recovi-r, 
and  ought  not  to  be  disinherited  without  the   production  of  a 
will  fully  and  satisfactorily  proved,  both  in  regard  to  the  fact  of 
•execution  and  the  capacity  of  the  alleged  testator  to  make  a  will 
of  lands  at  the  time.     Whereas,  the  jury  have  found  a  verdict 
for  the  defendant  against  the  said  heirs-at-law,  under  the  pre- 
tence of  a  will,  which  was  never'  really  executed  by  the  said 
J3enjamin  Vancleve,  and  although  he  was  not  of  a  sound  and 

*631 


742  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


disposing  mind  and  memory  when  the  said  pretended  will  is- 
said  to  have  been  made. 

The  argument  of  the  rule  for  a  new  trial  was  had  at  Feb- 
ruary term  by  R.  Stockton  and  Wall,  for  plaintiff;  L.  H.  Stock- 
ton and  Eunng,  for  defendant.  The  reporter  regrets  that  the 
length  of  the  report  is  such  as  to  forbid  inserting  the  whole  ar- 
guments. The  following  is  a  sketch  of  the  points  and  authorities 
relied  on : 

Wall,  in  support  of  the  rule. 

The  doctrine  respecting  new  trials  is  so  well  understood,  and 
the  necessity  of  resorting  to  them,  at  times,  to  attain  the  sub- 
stantial ends  of  justice  is  so  generally  admitted  by  every  jurist 
of  the  present  day,  that  it  is  necessary  only  to  refer  to  3  BL 
Com.  390,  for  the  principles  on  which  they  are  awarded.  The 
plaintiffs  here  claim,  as  heirs-at-law,  and  their  case  was  fully  . 
proved.  This  right  must  be  overcome  by  the  defendant,  and,  ia 
order  to  do  this,  he  must  not  only  show  the  formal  execution  of 
the  will,  but  that  the  testator  was  of  sound  and  disposing  mind 
and  memory.  3  Coke  part  6  p.  %3  ;  Pow.  on  Dev.  70  ;  2  Atk. 
151 ;  Cowp.  70.  The  burden  of  proving  sanity,  and  the  ability 
to  dispose  of  his  lands  with  reason  and  understanding,  lies  on. 
the  party  who  alleges  its  existence,  especially  where  probate  has- 
not  been  granted.  1  Mass.  71 ;  Pow.  14.6 ;  2  Vern.  56,  293  ? 

1  Vern.  293.     In  the  language  of  the  statute  (Pat.  19Q\  and  in, 
the  language  of  the  will  also,  it  must  be  shown  that  the  mind 
and  memory  were  sound  and  disposing ;   were  whole,  unbroken, 
unimpaired,  unshat*tered  by  disease  or  otherwise  capable  of  rec- 
ollecting, discerning  and  feeling  the  relations,  connections  and 
obligations  of  family  and  blood.     6  Jac.  L.  D.  436 ;  Esp.  56 ; 

2  Oro.  1(97 ;    South.  454)  Den  v.  Johnson.      These  authorities 
furnish  a  much  safer  guide  than  Swinburne  and  Godolphin, 
which  exhibit  a  mass  of  uncertainty  and  confusion.     The  testa- 
mentary capacity  was  not  proved  by  the  defendant.     His  wit- 
nesses exhibit  him  as  torpid,  unable  to  write  or  speak  more  than 
two  or  three  words  at  a  time ;  making  the  will  by  question  and 
answer ;  and  two  of  them  agree  that  he   had   not   capacity  to> 

*632 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  743 


Den  v.  Vancleve. 


make  a  deed.  Besides,  they  were  inconsistent  and  contradicted 
each  other,  and  related  the  transaction  differently  while  it  was 
fresh  in  their  memory.  An  attestation  to  a  will  so  made  and 
proved  will  not  be  sustained  by  the  court. 

Subscribing  witnesses  are  more  to  be  attended  to  than  others, 
because  they  are  supposed  to  have  better  opportunities  of  judg- 
ing than  others,  but  they,  like  others,  must  render  the  reason 
of  their  opinions,  and,  when  they  do,  the  court  must  determine 
upon  their  correctness.  The  capacity  of  the  testator  must  be 
estimated  by  his  words  and  actions,  both  of  which  are,  in  this 
instance,  insufficient.  It  is  manifest  that  the  witnesses  run  away 
with  an  ideal  and  unfounded  distinction,  and  concluded  that  he 
was  capable  of  making  the  will  in  question,  though  not  in  general 
capable  of  making  a  will.  It  was  said  to  be  a  copy  of  a  former 
will  which  he  had  made  and  remembered ;  but  of  this  there  is 
no  satisfactory  proof.  Besides,  this  is  a  mere  begging  of  the 
question  assuming  the  point  in  debate. 

On  the  other  side,  the  situation  of  testator's  mind  and  memory 
before  the  paralytic  affection  ;  his  forgetfulness  of  his  neighbors, 
and  even  his  own  family ;  his  state  during  his  last  illness,  but 
especially  the  night  before  and  night  after  this  execution  of  the 
will ;  his  torpor  and  unconsciousness  of  all  physical  wants,  and 
the  requirements  of  nature ;  his  neighbors  never  hearing  him 
speak ;  the  more  respectable  of  them  not  being  called  in  as  wit- 
nesses in  so  doubtful  a  case;  the  manner  of  executing  the  will, 
as  detailed  by  the  defendant  himself  to  Reeder — all  exhibit 
ample  evidence  that  he  did  not  and  could  not  make  the  will.  It 
would  have  been  a  miracle  had  his  mind  been  restored  and 
tongue  loosed  for  this  occasion.  The  idea  of  sustaining  the  will 
upon  the  ground  that  it  was  a  copy  of  a  former  one  is  untenable. 
It  must  stand  or  fall  by  itself.  There  is  no  proof  of  the  eon- 
tents  *of  the  former  will  except  defendant's  declarations;  even 
his  daughter  does  not  prove  them.  Nor  is  there  proof  of  its 
loss.  The  defendant  had  the  custody  of  it  himself  and  might 
have  destroyed  it.  The  chief-justice  expressly  charged  the  jury 
that  there  was  no  proof  than  any  of  the  plaintiffs  ever  took  it. 

Again.  The  evidence  of  testator's  declarations  was  unlaw- 

*633 


744  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


fully  admitted.  It  was,  in  effect,  showing  an  intention  to  do  an 
act  in  the  place  of  the  act  itself;  a  substitution  of  a  parol  for  a 
written  will  against  the  very  words  of  the  statute.  A  will  is  a 
complete  and  consummate  act  of  itself  and  no  collateral  proof  is 
admissible  to  sustain  or  explain  it.  No  matter  how  long  he  en- 
tertained the  intention,  how  fondly  he  cherished  the  idea,  if  he 
did  not  consummate  the  act  itself  while  capable  of  doing  it,  you 
cannot  dovetail  and  splice  the  mind  to  it  and  gather  the  mind 
from  the  previous  declarations.  Paw.  68, 481,  652  ;  1  Salk.  232  ; 
2  Vern.  S33.  Those  declarations  are  not  within  the  issue  of 
sanity  at  the  time.  1  Mass.  72 ;  9  Mass.  227. 

Nor  were  they  competent  as  rebutting  the  charge  of  fraud. 
If  any  were  charged  it  was  by  implication  only,  as  resulting 
from  defendant's  procuring  the  will  at  the  time  and  in  the  man- 
ner he  did.  And  if  this  justifies  the  evidence,  the  consequence  is 
that  fraud  is  charged,  and  declarations  are  admissible  wherever 
sanity  is  questioned. 

Again.  The  chief-justice  stated  the  capacity  necessary  to  make 
a  will.  Such  capacity  was  not  proved,  and  therefore  the  verdict 
.  was  against  the  charge  of  the  court. 

There  was  also  an  error  in  the  court  in  its  refusal  to  interro- 
gate Abigail  Coulter.  The  plaintiff  had  a  clear  right  to  this  in- 
terrogation. A  person  is  incompetent  as  a  witness  who  does  not 
believe  in  the  being  of  God,  and  does  not  comprehend  the  na- 
ture and  obligations  of  an  oath.  2  Sac.  576  "  Evidence "  A ; 
Sw.  EM.  47;  1  Atk.  45;  Phil  14. 

L.  H.  Stockton,  in  answer.  Among  the  various  points  of 
difference  between  him  and  the  opposing  counsel  there  was  one 
in  which  they  agreed — that  this  motion  was  addressed  to  the  dis- 
cretion of  the  court ;  but  this  discretion  was  not  an  arbitrary 
power  to  act  by  caprice  without  law  and  against  right,  but  a 
judicial  discretion,  regulated  by  an  attention  to  the  principles  of 
justice,  truth  and  reason  guided  by  the  common  law  and  limited 
by  *the  authority  of  precedents.  Morg.  257,  284;  5  Co.  100 
A;  2  Wil.  807. 

This  application  is  by  a  plaintiff  in  ejectment  after  a  trial  at  bar, 

*634 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  745 


Den  v.  Vancleve. 


and  verdict  for  the  defendant  without  fraud  or  surprise,  and  is 
therefore  extraordinary,  novel  and  unprecedented,  and  the  argu- 
ment against  it  is  naturally  divided  into  objections  arising,  first, 
from  these  circumstances,  independent  of  the  acts  of  the  court 
and  jury  ;  and,  secondly,  an  inquiry  into  the  legality  of  what  was 
done  by  the  court  and  jury. 

1.  It  was  a  trial  at  bar,  which,  of  itself,  is  considered,  in  many 
ancient  cases,  conclusive  against  a  new  trial.     2  Salk.  648 ;  1 
Ld.  Ray.  514;  Garth.  507 ;  Sir  T.  Jones  134,225  ;  And.  324; 
Cox  69.     It  is  not  like  a  verdict  in  a  personal  action,  where  it  is 
a  conclusive  bar,  -for  plaintiff  may  bring  a  second  ejectment. 

2.  The  verdict  is  for  defendant,  and  there  is  no  case  of  trial  at 
bar  and  verdict  for  defendant  where  the  verdict  has  been  set 
aside  upon  objections  to  error  in  court  or  jury  or  upon  the  merits, 
abstracted  from  fraud,  surprise  or  malfeasance  of  the  party  rela- 
tive to  the  trial.  And.  324  >  1  Black.  R.  348  ;  6  Com.  Dig.  404  ;  4 
Burr.  2224,  2225.     It  is  true  there  are  some  obiter  and  sweeping 
sayings  of  Lord  Mansfield  respecting  the  power  of  courts  on 
this  point,  yet  even  what  he  says  is  against  the  propriety  of  set- 
ting aside  a  verdict  for  defendant  in  ejectment.     And  besides, 
with  all  our  respect  for  his  learning  and  talent,  nam  nihil  tetigit 
quod  non  ornavit,  yet  we  cannot  fail  to  remark  that  he  felt  too 
strong  an  attachment  to  the  Justinian  code  of  the  civil  law  where 
thejubentia  prastorum  or  decree  of  the  court  was  everything  and 
the  jury  nothing.     Loffl  477. 

3.  Ejectments  savor  of  the  nature  of  a  criminal  action  both 
in  form  and  in  the  questions  often  tried  in  them,  as  where  frauds 
or  forgery  of  deeds  is  alleged.     See  Chew  v.  Tatem,  Driver  v. 
Sparks  and  other  cases.     This  case  is  strongly  of  that  descrip- 
tion.    The  plaintiff  alleged  and  attempted  to  prove  against  the 
defendant  conspiracy,  fraud,   intimidation  and  hard   usage  to- 
wards the  testator,  his  father,  who  is  alleged  to  have  been  an 
almost  inanimate  being,  and  subornation  of  perjury  in  relation  to 
Johnson,  one  of  his  witnesses ;  charges  which,  if  true,  rendered 
<lefendant  liable  to  be  indicted  as  a  culprit.     2  Burr.  1127, 1129  ; 
J  Bac.  549  "Indictment "  E;  Pat.  232.     These  charges  the  jury 
negatived,  and  the  court  ought  not  to  interfere  and  deprive  the 


746  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


defendant  of  the  *shield  of  innocence  afforded  by  the  verdict. 
4  Burr.  2257 ;  Lofft  451;   Cowp.  37. 

Having  presented  these  legal  obstacles  to  a  new  trial  it  is 
proper  to  examine  the  reasons  relied  on  by  the  plaintiff,  and — 

1.  Respecting  Abigail  Coulter.      It  is  not  denied  that  the 
general  principle  urged  by  the  counsel  and  proved  by  his  authori- 
ties is  correct,  viz.,  that  a  witness  should  believe  the  being  of  a 
God,  and  discern  the  nature  and  obligations  of  an  oath.     But 
fourteen  years  being  the  age  of  legal  discretion  (Harg.  Co.  IM* 
247  b;   Gilb.  Ev.  130  ;  H.  P.  C.  263;  2  Hawk.  434;  Inf.  Law 
30\  all  persons  over  that  age  are  presumed  to  know  the  law 
(Lofffs  Max.  10),  one  important  part  of  which  is  the  Christian 
religion,  which  teaches  these  truths.     LoffYs  Max.  9, 10, 19,  m.  2, 
3, 203  ;  1  Bl.  Com.  41, 42  ;  Omst.  of  N.  J.  §  22.    This  knowledge, 
then,  being  presumed,  it  was  not  necessary  to  prove  it.     No  man 
can  allege  ignorance  of  the  law.     Gilb.  148.      White's  case,  which 
has  been  cited    from  Swift,  was  decided  at  the  Old  Bailey  in 
1786  (2  Leach  46},  and  is  not  law  here.     Moreover,  it  was  an 
obiter  sub  silentio  proceeding,  and  merely  shows  that  the  court 
thought  that  in  that  case  it  had  the  power  to  propose  such  ques- 
tions ;  and  its  exercise  was  perhaps  justified  by  the  state  of  society 
and  the  character  of  the  persons  who  usually  appear  in  that  place, 
in  that  great  city  which  Doctor  Johnson,  in  his  celebrated  poem 
which  bears  its  name,  calls  "  London  the  needy  villains'  general 
home."     But  this  reason  cannot  apply  to  a  witness  apparently 
intelligent  and  respectable,  educated  in  a  civilized  and  Christian 
neighborhood  and  family,  under  the  ministrations  of  a  faithful 
and  zealous  clergyman.      Such  gross  ignorance  would  be  dis- 
graceful, and  therefore  she  ought  not  to  be  compelled  to  dis- 
close it.     Swift  49,  50,  51. 

But  if,  in  technical  strictness,  the  previous  interrogatories 
should  have  been  put,  still  the  verdict  must  stand,  because  no 
positive  injury  has  been  done.  1  Burr.  54;  Oro.  Jac.  640 ;  3 
Witts.  272.  Her  testimony  was  collateral,  not  perhaps  impor- 
tant, and  stands  without  question. 

2.  Upon  the  third  reason,  that  the  verdict  was  against  the 
charge  of  the  court,  it  is  sufficient  to  say  that  the  counsel  have 

*635 


2  SOUTH.]         SEPTEMBER  TERM,  1819. 


Den  t.  Vancleve. 


relied  upon  a  general  allegation  without  stating  one  particular  or 
specific  matter,  and  that  no  such  contradiction  in  reality  existed. 

The  nature  of  the  case  was  such  that  an  explicit  charge  or 
"opinion  of  the  judge  on  the  merits  of  the  case  could  not,  with 
legal  propriety,  have  been  given.  The  charge  could  be  no  other 
than  hypothetical,  and  referring  the  adjustment  of  disputed  facts 
to  the  jury.  Bushel's  Case,  Vauyh.  R.  143,  144  &c- 

3.  The  admission  of  unlawful  evidence,  which  is  the  principal 
ground  of  this  motion,  is  said  to  be  of  two  sorts — 1.  Divers  con- 
versations of  the  testator,  from  1802  to  1816,  tending  to  show  his 
intention  to  give  the  land  to  defendant ;  and  2.  Parol  proof  of  the 
contents  of  certain  wills.  As  to  the  latter  of  these  exceptions, 
Abigail  Coulter,  Mary  Vancleve,  and  John  Phares  proved  that 
such  wills  had  existed  and  could  not  now  be  found.  Two  of  the 
lessors,  Mrs.  Clarke  and  John  Stevens,  were  also  proved  to  have 
confessed  this  fact.  It  was,  therefore,  competent,  upon  the  strict- 
est legal  principles,  to  prove  their  contents.  But  this  evidence  was 
not  objected  to  in  this  light  at  the  trial,  and  the  objection  ought  not, 
therefore,  now  to  prevail.  3  Burr.  1255  ;  Lev.  202;  10  Mod.  202. 

But  the  other  part  of  this  exception  is  most  important,  and 
the  decision  of  the  court  is  defensible  on  two  grounds — 1.  As 
original  evidence.  It  was  the  conversation  of  the  ancestor,  under 
whom  the  plaintiffs  claim,  relative  to  the  land,  and  stands  on  the 
same  ground  as  the  declarations  of  the  party  relative  to  the  sub- 
ject-matter in  dispute.  The  privity  of  right  or  legal  unity  is 
most  strict  between  heir  and  ancestor.  If,  Johns.  280 ;  2  Doll. 
93, 94.  But,  2.  The  evidence  was  clearly  competent  to  show  that 
defendant  had  not,  as  was  pretended,  taken  an  undue  advantage 
of  testator's  situation  and  dotage.  To  prove  this,  plaintiff  had 
sworn  sixteen  or  seventeen  witnesses,  none  of  whom  were  present 
at  the  execution  of  the  will,  or  spoke  of  his  capacity  at  the  time  ; 
but  all  of  whom  spoke  of  acts,  conversations  and  conduct,  weeks, 
months  and  years  previous,  and  one  of  whom  pretended  that 
defendant  treated  hiin  harshly,  and  intimidated  him.  After  this 
parol  evidence  it  was  surely  competent  to  rebut  it  by  parol,  show- 
ing a  different  state  of  facts,  agreeably  to  the  ancient  common 
law  maxim,  eo  ligamine  quo  ligatur  dissolvitur.  Noy  11 ;  1  El. 

*636 


748  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


It.  60.  The  contrary  doctrine  leads  to  this  result — that  parolx 
collateral  evidence  is  competent  to  create  presumption  of  fraud 
in  order  to  avoid  a  will,  but  incompetent  to  rebut  a  charge  of 
fraud  and  sustain  a  will,  as  if  the  law  delighted  in  frauds,  whereas 
the  contrary  is  the  fact.  Noy  28  §  33. 

*Two  considerations  are  here  important — 1 .  What  evidence  is. 
2.  The  circumstances  under  which  the  evidence  objected  to  was 
given.  3  Burr.  1255.  Blackstone  vol.  3  p.  307,  says  that  evidence 
elucidates  &c.  the  point  in  issue.  Now,  what  is  the  issue  here  ? 
Was  the  will  executed  in  a  state  of  legal  capacity,  or  extorted  by 
fraudulent  importunity  from  a  debilitated,  doting  old  man  in 
extremis  ?  The  witnesses  gave  conflicting  opinions,  and  several 
of  plaintiff's,  as  Bullock,  Cook  and  others,  detailed  conversa- 
tions, to  show  his  want  of  memory.  Can  it,  then,  be  otherwise 
than  competent  to  elucidate  the  point  in  dispute  by  detailing  what 
he  said  on  the  subject-matter  of  dispute,  and  his  intentions 
to  devise  in  the  precise  manner  he  did  devise?  This  would  be 
a  partial  and  inequitable  rule,  and  the  rejection  of  such  evidence 
would,  on  a  bill  of  exceptions,  be  at  once  corrected  by  the  court 
of  appeals,  as  the  counsel  must  believe,  since  they  have  deserted 
the  bill  which  they  took  at  the  trial. 

But  Powell,  Vemon  and  others  are  read  to  show  that  a  will 
must  be  in  writing,  executed  by  the  testator  in  a  state  of  sanity, 
and  in  the  presence  of  witnesses  &c.,  and  that  declarations  will 
not,  in  themselves,  amount  to  what  the  law  requires.  This  is 
true.  But  the  objection  is  not  solid ;  it  is  to  a  part  of  the  evi- 
dence, because  that  alone  is  not  sufficient.  The  defendant  did 
produce  a  will  in  writing,  executed  in  the  presence  of  witnesses. 
The  plaintiff  then  alleged  that  the  testator  was  incapable,  and 
subjected  to  fear  and  undue  influence,  and  gave  parol  proof  to 
.support  his  allegations.  The  court  will  certainly  permit  that 
parol  proof  to  be  rebutted,  and  will  not  forget  one  part  of  the 
evidence  and  then  reject  another  as  wanting  in  effect.  The  argu- 
ment of  plaintiff  is  this  :  We  are  heirs-at-law ;  you  set  up  a  will ; 
we  combat  it  by  parol ;  you  must  not  answer  by  parol,  because 
you  cannot  establish  your  estate  by  parol.  As  if,  in  a  suit  on 
bond  of  testator  defendant  tried  to  prove  fraud ;  plaintiff  offered 

*637 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  749 


Den  ».  Vancleve. 


to  rebut  it  by  proof  of  his  declarations,  that  he  borrowed  the 
money,  and  the  defendant  should  answer  that  the  proof  was  in- 
admissible, because  a  claim  on  bond  could  not  be  supported  by 
parol  alone  without  a  bond.  In  Chew  v.  Totem,  Driver  and 
Sparks,  in  Gloucester,  and  Couch  v.  Sheppard,  at  Salem  circuit, 
such  testimony  was  admitted  without  objection.  Of  the  ground 
of  its  admission  little  need  be  said.  Cases  involving  charges  of 
fraud  always  afford  an  exception  to  general  rules  on  strict  prin- 
ciples. *Here,  as  plaintiff  had  a  right  to  do  (1  Mor.  184),  he 
made  a  charge  of  fraud.  Fraud  avoids  all  acts,  and  the  concur- 
rent jurisdiction  of  common  law  with  equity  courts,  admits  a 
latitude  of  presumptive  proof  in  the  former  respecting  it.  1  Mor. 
288;  Park,  an  Ins.  24%,  243. 

The  fourth  reason  assigned  on  this  motion  is  that  the  verdict 
is  against  the  evidence.  This  reason  is  unsupported  by  the  case. 
(Here  Mr.  Stockton  presented  his  view  of  the  case  as  it  appeared 
upon  the  evidence,  maintaining  a  clear  and  decided  preponderance 
in  favor  of  the  correctness  of  the  defendant's  conduct  and  the  sanity 
of  the  testator.)  He  then  argued — 2.  That  if  the  court  thought 
the  evidence  doubtful,  or  that  the  jury  misjudged  and  that  they, 
»s  jurors,  would  have  given  a  different  verdict,  still  they  could  not 
disturb  it.  The  subscribing  witnesses,  with  Mary  Vancleve, 
.spoke  conclusively  and  clearly  of  the  testator's  capacity  at  the 
time.  They  are  all  consistent,  most  of  them  unimpeached  and 
unimpeachable.  The  plaintiff's  witnesses  did  not  see  him  at  the 
time,  and  they  who  spoke  of  his  failings  detailed  only  a  loss  of 
memory,  while  they  gave  some  remarkable  instances  of  his  judg- 
ment, as  in  the  age  of  horses,  and  the  value  of  money  and  land. 
If  a  verdict  had  been  given  against  such  evidence  the  court  would 
have  set  it  aside.  But  be  this  as  it  may,  there  was  evidence  for 
the  defendant,  and  of  this  evidence  the  jury  were  the  constitu- 
tional and  exclusive  judges,  and  their  verdict,  unless  capriciously 
against  all  evidence,  must  be  conclusive.  The  limits  between  the 
court  and  jury  are  as  specifically  and  clearly  defined  and  ascer- 
tained by  legal  writers  and  positive  adjudications  as  any  in  the 
extensive  sphere  of  forensic  science.  8  El.  Com.  392.  No  case 
can  be  produced  of  a  new  trial  upon  the  mere  allegation  that  the 

*638 


750  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


verdict  was  against  evidence,  where  there  was  evidence  on  both 
sides.  S  Wlh.  38,  Jfi,  This  case,  and  the  opinion  of  the  chief- 
justice  in  it,  explain  the  true  grounds  on  which  this  question 
rests,  and  is  the  more  valuable  because  argued  and  decided  twelve 
years  after  Crips  and  Eynon,  where  the  doctrine  of  new  trials  is 
largely  laid  down.  Other  cases  are  in  conformity  with  this. 
2  Sir.  114%;  7  Mod.  117 ;  1  Wils.  22  ;  1  Bl  R.  1;  12  Mod. 
128 1  5  Burr.  2805  ;  2  Sir.  1105.  Nor  have  American  judges 
been  slow  in  recognizing  this  great  constitutional  right  to  have 
the  facts  decided  by  jury.  2  Dal.  121 ;  4  Dal.  390  ;  3  Johns. 
170,  271 ;  5  Mass.  229,  353,  *355 ;  Coxe  228.  Nor  is  this 
coincidence  remarkable.  They  are  all  founded  on  the  common, 
venerable  and  estimable  basis  of  the  common  law,  which  directs 
the  court  to  judge  in  matters  of  law  and  the  jury  in  matters 
of  fact.  Maxims,  in  the  law,  are  of  powerful  weight  (15  Vin. 
351 ;  2  Inst.  210),  and  these  enforce  the  principle  contended  for. 
Loffl's  Max.  p.  11,  Max.  37  ;  Juditium  duodedm  &c.  Max.  4-8 
ad  quest,  facti  &c. 

In  this  cause  the  principal  matters  in  dispute  before  the  jury 
were  not  of  law  but  respected  the  testator's  capacity  at  the  exe- 
cution of  the  will.  Now,  in  Den  v.  Moore,  2  South.  JflO,  and 
Den  v.  Johnson,  2  South.  454,  and  in  the  charge  of  the  chief-jus- 
tice in  this  case,  it  was  expressly  held  that  this  matter  was  within 
the  exclusive  and  peculiar  province  of  the  jury.  Yet,  still  the 
plaintiffs  wish  the  court  to  arrogate  to  themselves  this  great  con- 
stitutional right  of  the  jury,  to  pass  on  disputed  facts,  a  right 
secured  by  magna  charta;  so  endeared  by  a  knowledge  of  its 
value  in  securing  the  blessings  of  civil  liberty  that  a  suspicion 
of  an  intention  to  deny  it  was  one  of  the  grievances  which  first 
agitated  our  fathers  in  the  commencement  of  the  revolution ;  a 
right  formidable  only  to  tyrants,  but  of  such  high  value  in  the 
consideration  of  the  patriots  of  New  Jersey  in  '76  that  by  the 
twenty-second  article  of  the  constitution  they  engrafted  it  into 
our  system  and  restrained  the  people  from  depriving  their  pos- 
terity of  its  benefits,  confirming  it  without  repeal  forever.  This 
privilege  is  claimed  for  the  defendant.  He  has  been  acquitted, 
pronounced  not  guilty  of  the  charges  against  him,  by  a  jury  as 

*639 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  751 


Den  t.  Vancleve. 


respectable  for  integrity  and  intelligence  as  ever  appeared  at  this 
bar.  He  is  confident,  when  he  asks  that  this  shield  be  not  taken 
from  him,  he  will  not  ask  in  vain. 

Wall  read  the  following  cases  on  the  question  of  a  new  trial 
after  a  trial  at  bar:  1  Str.  534,  1105;  Stiles  462;  1  Burr. 
390,  395;  Bl  Rep.  $4,5,  348;  4  Burr.  2224;  Perm.  37. 

Euring,  on  the  same  side.  This  verdict,  from  the  character 
and  condition  of  the  parties,  the  extent  of  the  evidence,  the  de- 
liberate nature  of  the  trial,  and  the  respectability  of  the  jury, 
possesses  every  mark  worthy  of  attention,  and  on  behalf  of  the 
defendant  it  is  denied  that  there  is  either  precedent  or  law  for 
setting  it  aside.  It  is  a  verdict,  after  trial  at  bar  in  an  eject- 
ment, for  the  defendant,  circumstances  not  combined  in  any  other 
*case  where  a  new  trial  has  been  granted.  2  Salk  648,  650  ;  7 
Mod.  156;  6  Bac.  674  "  Trial"  L;  2  Str.  1105. 

But  if  the  ordering  of  a  new  trial  in  such  a  case  were  within 
the"  course  of  practice  there  are  here  no  sufficient  grounds  for  it. 
Let  us  examine  the  reasons  assigned,  and — 1.  The  admission  of 
unlawful  evidence.  This  is  no  ground  for  setting  aside  a  verdict 
after  a  trial  at  bar.  Such  proceeding  would  be  an  appeal  from 
the  same  court  to  the  same  court,  which  can  never  legally  be 
called  on  to  review  its  own  opinions ;  it  would  be  inconsistent 
with  the  first  principles  of  our  jurisprudence.  To  justify  the 
court  in  supporting  this  motion  the  plaintiff  should  show  that 
such  a  power  has  heretofore  been  exercised,  but  no  case  can  be 
produced  from  the  books  where,  for  such  ground,  a  verdict  at 
bar  has  been  set  aside  or  the  question  even  raised. 

The  defendant  might  rest  upon  this  answer,  but  it  is  not  neces- 
sary, for  an  examination  of  the  objections  to  the  testimony  will 
dispel  every  pretence  for  a  new  trial. 

First,  then,  as  to  the  declarations  of  the  testator.  It  will  be 
well  recollected  what  these  declarations  were.  Such  evidence  of 
the  antecedent  views  and  feelings  of  the  testator  is  competent  at 
all  times  on  a  question  of  capacity.  A  mind  once  vigorous  and 
sound  is  alleged  to  have  become  imbecile,  disordered  and  shat- 

*640 


752  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


tered.  How  may  this  be  ascertained  ?  By  comparison  of  its 
views,  feelings,  acts  with  the  views,  feelings,  acts  and  intents  of 
a  period  of  acknowledged  capacity.  Derangement  consists  in  a 
departure  from  ordinary  habits  of  thought,  speech  and  conduct. 
Rush.  Lee.  366.  It.  is  all-important,  therefore,  to  ascertain  the 
ordinary  habits.  If  a  will  be  conformable  to  a  man's  settled  ar- 
rangement, a  transcript  of  his  mind  when  in  acknowledged  vigor, 
there  is  every  reason  to  believe  the  mind  sound  at  the  period  of 
the  act.  This  conformity  must  be  ascertained  by  proof  of  pre- 
vious declarations  and  intentions;  and  if  such  conformity  be 
shown,  the  presumption  that  the  vigor  of  the  mind  remained  is 
strong.  Reverse  the  picture.  Suppose  it  be  proved  that  the 
testator  was  never  heard  to  suggest  such  a  disposition  as  the  will 
contains,  but  that  he  always  intended  to  make  a  different  will, 
the  testimony  would  be  both  competent  and  overwhelming ;  and 
if  so  on  one  side,  it  is  so  on  the  other.  It  is  not  pretended  to  be 
conclusive,  but  admissible ;  and,  in  fact,  evidence  of  this  kind  is, 
on  all  occasions,  received. 

*But  2.  Whatever  may  be  the  rule  in  general,  this  evidence 
was  clearly  admissible  when  offered.  The  plaintiff  had  opened 
to  the  jury  that  this  will  had  been  procured  by  fraud  and  impo- 
sition ;  that  the  testator  was  a  machine  in  the  hands  of  his  son ; 
that  from  his  state  of  dependence  and  the  control  exercised  over 
him  by  his  sou,  he  was  not  his  own  master,  but  had  been  moved 
to  make  a  will  agreeably  to  his  son's  wishes,  and  not  his  own, 
and  the  plaintiff  had  actually  produced  two  witnesses,  Reeder 
and  Castner,  to  support  this  opening.  To  repel  the  charges  and 
overcome  the  proof,  it  was  right  to  show  his  previous  declarations 
and  intentions;  for  they  proved — 1.  That  no  control  was  eser- 
cised  over  him,  for  he  did  what  he  always  intended  to  do.  And 
2.  That  no  fraud  was  practiced,  for  he  was  not  made  to  speak 
otherwise  than  he  always  intended.  If  an  executor  be  sued  on 
his  testator's  bond,  and  he  allege  that  it  was  obtained  by  fraud, 
would  it  not  be  competent  to  prove  that  the  testator  had  ac- 
knowledged he  owed  the  money,  and  repeatedly  declared  he 
intended  to  give  such  a  bond  ?  If  the  plaintiffs  could  have  fol- 
lowed up  Reeder  and  Castner,  by  proof  that  testator  had  uni- 

*641 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  753 


Den  ».  Vancleve. 


formly  and  for  years  declared  that  he  meant  to  make  a  different 
disposition  of  his  property,  he  would  have  offered  it  with  triumph 
and  pressed  it  with  urgency,  and  it  would  have  influenced  the 
jury  with  force.  The  same  measure  ought  to  be  permitted  to 
the  defendant.  The  principles  here  maintained  are  sanctioned 
in  Pennsylvania.  1  Yeates  108 ;  2  Yeates  1$. 

3.  This  testimony  is  admissible  in  another  view.  The  defend- 
ant had  two  objects :  1.  To  prove  a  general  testamentary  capac- 
ity. 2.  To  prove  a  capacity  to  do  the  act  in  question ;  to 
understand,  approve  and  execute  a  will  which  he  had  previously 
arranged  and  settled  in  his  own  mind.  Evidence  of  such  capac- 
ity was  given ;  and  this  testimony  was  calculated  to  show  that 
he  had  previously  made  such  arrangements,  and  had,  for  a  con- 
siderable time,  settled  in  his  mind  the  will  he  intended  to  make. 

But  it  is  objected  that  a  will  must  be  in  writing.  This  is 
true,  but  it  does  not  follow  that  all  evidence  relative  to  the  will 
must  be  in  writing  also ;  here  a  will  was  produced,  not  supplied 
by  parol.  Powell  481  only  proves  that  parol  evidence  may  not 
be  given  to  construe  a  will.  Again,  it  is  said  not  to  be  within 
the  issue.  What  was  the  issue  ?  Not  capacity  alone,  but  whether 
the  will  had  been  fairly  obtained ;  not,  not  guilty,  but  all  the 
prominent  *facts  necessary  to  a  recovery  or  defence.  This  testi- 
mony is  applicable  to  them. 

2.  As  to  the  evidence  of  the  contents  of  the  wills.     1.  The 
evidence  offered  and  given  was  not  of  the  contents  of  written 
instruments,  but  of  the  declarations  of  the  testator  with  regard 
to  the  disposition  he  had  made,  and  intended  to  make,  of  his 
property.     It  is  not,  therefore,  within  the  rule  respecting  the 
parol  evidence  of  the  contents  of  papers.     2.  The  plaintiff"  in- 
troduced such  testimony  by  A.  Reeder,  Esq.     3.  No  objection 
was  made  on  this  score  at  the  trial  it  is  now  too  late.     11  Johns. 
71 ;  3  Burr.  1253. 

[R.  Stockton.  The  court  does  correct  its  own  mistakes.  Coxe 
12, 13,  48,  78.~\ 

3.  As  to  Abigail  Coulter.     She  was  sixteen  years  old.     A 
witness  at  fourteen  has  a  legal  discretion,  and  no  previous  exami- 
nation is  to  be  made.     Her  credibility  is  for  the  jury.     GUb. 

*642  48 


754  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vanclere. 


147s  ®  Hale  P.  C.  278;  Swift  46;  Peake  123.  Even  if  there 
be  a  mistake  the  court  will  not  set  aside  the  verdict  unless  injury 
has  been  done.  2  Caines  88,  90;  BOG.  "  Ti-iat"  L  4. 

4.  As  to  the  charge.     It  was  on  three  points.     1.  That  no 
precise  line  could  be  drawn  where  capacity  ends  and  incapacity 
begins.     2.  That  the  declarations  of  testator  were  admitted  to 
repel  the  imputation  of  fraud  but  not  to  supply  evidence  of  ca- 
pacity, if  that   were  wanting.     And  3.    That  the  jury  might 
arrive  at  a  correct  verdict  without  deciding  the  question  of  taking 
the  wills.     On  none  of  these  points  is  it  at  all  perceived  that  the 
verdict  conflicts  with  the  charge. 

5.  As  to  the  verdict  being  against  evidence.     Here  it  is  ma- 
terial to  ascertain  the  power  of  the  court,  as  established  by  law, 
to  control  the  acts  of  the  jury.     They  are  organized  for  different 
purposes.     The  court  must  see  that  the  jury  keep  within  their 
province,  but  within  those  hallowed  precincts  no  court  can  enter. 
The  effect  and  influence  of  the  evidence  is  the  peculium  of  the 
jury.     The  opinion  of  the  court,  as  to  the  facts,  is  not  the  cri- 
terion of  the  validity  of  a  verdict.     If  it  were,  why  "  cheat  the 
deluded  people  with  a  show  of  liberty  which  yet  they  ne'er  must 
taste  of ; "  why  the  mockery  of  a  jury  trial  ?     The  rule  is  clearly 
this :  If  there  be  evidence  on  which,  standing  alone  and  uncon- 
tradicted,  the  verdict  might  rest,  it  shall  not  be  set  aside.     3  Bl. 
Com.  392;  1  Burr.  609  ;  1  Wil  22;  '3  Wills.  45  ;  2  Str.  1105, 
114$;   Cowp.37;  Penn.  947;  5  BOG.  664;  Denv.Merritt,\n 
this  court.     In  the  pre*sent  case,  so  wholly  did  the  chief-justice 
deem  it  within  the  province  of  the  jury,  that  he  would  have 
given  no  charge  but  for  the  importunity  of  the  plaintiffs'  counsel. 

With  this  principle  of  law  the  facts  of  the  case  must  be  re- 
viewed and  the  plaintiffs'  counsel  must  be  followed,  though  he 
did  exhibit  the  strange  spectacle  of  addressing  the  court  upon 
matters  of  fact.  Picking  up  a  scrap  here  and  a  shred  there  he 
would  present  this  thing  of  shreds  and  patches  as  the  whole  of 
the  garment  the  defendant  had  to  cover  him.  The  judges  who 
heard  the  evidence  can  receive  no  unfavorable  impression  from 
such  a  view  of  the  case,  and  the  one  who  was  absent  will  find  the 
•best  corrective  in  a  full  examination  of  the  evidence.  Here  Mr. 

*643 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  755 


Den  v.  Vancleve. 


Ewing  proceeded  to  discuss  the  case,  arguing  that  it  was  conclu- 
sively with  the  defendant. 

R.  Stockton,  in  reply.  The  objections  to  this  rule  may  be  thus 
•classified  :  1 .  Such  as  depend  upon  the  nature  of  the  suit  and 
the  verdict  of  the  jury,  without  taking  into  consideration  the 
judicial  opinions  given  on  the  trial  or  the  verdict  on  its  merits. 
And  2.  Such  as  relate  to  those  opinions  and  that  verdict  on  the 
merits  between  the  parties. 

In  the  first  class  two  grounds  are  taken — 1.  That  this  is  a 
suit,  in  its  nature  criminal,  where  a  verdict  has  been  rendered  for 
the  defendant.  There  are  degrees  even  in  unfounded  propo- 
sitions, and  this  is,  of  all,  most  destitute  of  basis.  It  is  a  rule 
•of  law  that  in  a  criminal  prosecution,  or  suit  substantially  so, 
where  defendant  is  acquitted,  there  shall  be  no  new  trial.  The 
principle  is  beneficent  and  merciful,  but  to  apply  it  the  proceed- 
ing must  be,  in  form  or  substance,  criminal.  These  are,  at  com- 
mon law,  first,  indictment,  second,  information,  the  object  of 
•which  is  punishment ;  and  if  ever  applied  to  other  cases  it  is  be- 
cause they  have  substantially  the  same  object.  The  inquiry  i*, 
What  is  the  nature  and  object  of  the  suit  ?  not  what  questions  or 
contestations  arose  in  its  progress  and  trial.  Now,  that  eject- 
ment is  a  criminal  prosecution  or  in  nature  of  one,  has  been  re- 
served for  discovery  till  this  time.  It  is  a  suit  of  the  highest 
order,  a  substitute  for  real  actions ;  its  object  and  result  the  title 
•of  land.  Its  nature  is  not  altered  by  the  facts  in  controversy. 
In  this  it  is  like  personal  actions.  Collateral  questions  may 
arise  in  them  containing  charges  of  a  criminal  character  against 
party  or  witness.  As  *in  debt  of  bond,  plea,  payment  and  re- 
ceipt offered,  plaintiff  may  allege  that  it  is  forged,  so  that  a  wit- 
ness to  actual  payment  was  perjured.  Yet  this  would  be  no 
obstacle  to  new  trial  if  there  was  otherwise  good  reason.  The 
case  of  Grips  v.  Eynon  was  assumpsit,  the  question  forgery,  the 
verdict  for  defendant,  yet  there  was  new  trial.  2  Burr,  1 1 .'? 
shows  that  the  frauds  which  are  indictable  are  of  a  public  nature, 
against  which  ordinary  prudence  could  not  guard,  not  such  as 
that  charged  on  this  defendant ;  yet,  even  if  they  were  such,  it 

*644 


756  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


would  not  alter  the  case ;  this  ejectment  would  still  not  be  a 
criminal  suit.  The  case  in  Cowp.  37  is  a  short  note  and  badly 
reported.  The  reason  assigned  is  not  the  true  one ;  it  should 
have  been  that  it  was  a  hard  action. 

2d  objection.  There  can  be  no  new  trial  in  ejectment  by  special 
jury  at  bar  and  verdict  for  defendant.  There  is  nothing,  in 
New  Jersey,  in  any  of  these  objections ;  all  have  been  separately 
overruled,  and  their  aggregate  can  have  no  avail  as  an  impedi- 
ment. 1  Sir.  504  and  1  Bl.  R.  345  were  ejectments  and  trials 
at  bar.  1  Burr.  395  and  4-  Burr.  2224  were  special  juries. 
Den  v.  Driver,  Coxe  166,  and  1  Penn.  37,  were  verdicts  for 
defendant ;  and  yet,  in  all  these  cases,  new  trials  were  awarded. 
It  is  palpable  that  there  is  no  sound  principle  to  support  any  of 
these  objections,  and,  where  there  are  grounds  for  new  trial,  to- 
compel  the  plaintiff  to  pay  the  costs  and  bring  a  new  suit  with 
the  influence  of  an  improper  verdict  against  him.  Justice  and 
convenience  require  that,  in  ejectment  as  well  as  every  other 
suit,  the  court  should  submit  to  no  restriction  which  interrupts 
the  attainment  of  the  real  justice  of  the  case.  Den  v.  Alien  is 
conclusive  on  this  point. 

The  second  class  of  reasons  relates  to  the  judicial  opinions  pro- 
nounced on  the  trial  and  to  the  verdict.  And  here  it  is  said  that 
if  this  court  did  admit  illegal  evidence,  it  cannot  correct  its  own 
errors  and  award  a  new  trial.  Neither  precedent  nor  principle 
sanctions  this  idea.  No  writer  lays  down  such  a  rule ;  on  the 
contrary,  every  reason  is  against  its  establishment.  Error  may 
creep  into  a  trial  here  as  well  as  at  circuit,  and  should  not  be 
without  redress.  It  is  proper  and  correct  that  it  should  be 
redressed,  and  such  is  not  only  the  necessary  practice  of  the 
common  pleas,  but  the  constant  practice  of  this  court  also.  See 
Coxe  Rep.  Let  the  court  think  what  they  may  or  can  of  the 
sanctity  of  a  verdict,  they  will  never  suffer  it  to  stand  if  they 
are  convinced  that  they  *deprived  the  plaintiff  of  any  right,  or 
did  him  any  injury  on  the  trial.  In  such  case,  the  trial  can 
neither  be  fair  nor  satisfactory. 

1.  The  first  error  of  the  court  was  in  refusing  to  permit  an 
examination  of  a  young  female  witness  on  her  voir  dire,  touching; 

*645 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  757 


Den  r.  Vancleve. 


her  knowledge  of  the  nature  and  obligation  of  an  oath.  She 
was  a  servant  to  defendant,  bound  as  a  pauper  by  the  overseers  ; 
had  never  been  sworn,  and  was  called  to  confirm  the  testimony 
of  a  child  of  fourteen,  which  was  chiefly  intended  to  fix  on 
plaintiff  the  imputation  of  stealing  the  will  of  1814.  Her  dis- 
cretion and  knowledge  were,  therefore,  very  important.  The 
influence  of  her  evidence  on  the  jury  no  one  can  tell. 

It  is  competent  to  examine  witnesses,  old  or  young,  to  ascer- 
tain their  discretion,  and  how  they  appreciate  their  duties  and 
the  nature  and  obligations  of  an  oath ;  and  the  books  never 
speak  of  their  ages  when  this  examination  is  made ;  it  is  not  con- 
fined to  those  under  fourteen.  A  witness  must  have  discretion 
and  knowledge,  and  these  may  not  exist  in  all  who  live  in  a 
Christian  country,  in  a  good  family,  and  near  a  church.  You 
can  ascertain  their  existence  only  by  an  examination.  This  ex- 
amination has  been  confounded  with  the  question  when  an  infant 
may  be  sworn  as  a  witness,  which  may  be  at  fourteen,  if  youth 
be  the  only  objection.  The  law,  then,  presumes  discretion  and 
knowledge  ;  but  the  presumption  may  be  rebutted,  and  can  only 
be  rebutted  in  this  way.  In  Whit*? a  case,  read  from  Swift,  he 
was  evidently  an  adult  (Leach  368),  and  the  inquiry  never  has 
been  refused  because  the  witness  was  fourteen.  GUb.  13 ;  Swift 
4&;  2  Hale  278.  The  assertion  that  witness  may  not  be  so 
questioned  in  England  is  incorrect.  Phil.  18.  He  may  be  ex- 
amined further  as  to  his  religious  opinions.  2  Wil.  Bac.  577, 
"  Evidence  "  note  a.  The  proper  question  to  try  competency  is 
not  if  he  believes  in  Jesus  Christ,  but  in  God,  the  obligations 
of  an  oath  and  a  future  state  of  rewards  and  punishments. 
This  is  a  restriction  of  the  old  rule,  and  was  introduced  by 
Butter,  1  Peake  N.  P.  11. 

3.  The  court  admitted  parol  evidence  of  the  declarations  of  tes- 
tator, from  1802  to  1814,  of  a  steady,  uniform  intention  to  leave 
this  land  to  the  son.  On  this  point  there  are  two  inquirio  :  1 . 
Were  these  declarations  evidence  per  sef  2.  Were  they  made 
legal  by  the  plaintiff? 

1.  They  were  illegal,  because  not  within  the  issue.  This 
prin*ciple  is  clear.  Evidence  not  within  the  issue  cannot  be  re- 

*646 


758  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


ceived.  The  issue  was,  guilty  or  not  guilty ;  but  the  title  to  the- 
land  was  the  general  question.  The  plaintiffs  claimed  title  by 
descent ;  the  defendant  by  devise.  These  declarations  were  na 
evidence  to  impugn  the  plaintiffs'  title ;  he  wanted  no  intent  for 
his  title.  Then,  as  to  defendant,  intent  that  he  should  have  the 
land  could  not  aid  him,  unless  executed  by  legal  will.  Even  a 
will,  in  his  own  handwriting,  with  two  witnesses,  to  aid  the 
intent,  would  not  answer.  Intent,  without  the  act,  is  no  evi- 
dence of  the  title.  But,  it  is  argued,  the  particular  issue  wa& 
compos  or  non  compos.  True ;  but  it  wa&  compos  or  non  compos- 
at  the  time.  Now,  declarations  fifteen  years  before,  could  not 
shed  light  on  his  capacity  in  1817.  If  he  had  said  in  1802,  that 
John  and  the  daughters  should  have  the  land,  it  would  not  have 
been  competent  against  the  will ;  neither  are  the  declarations 
that  Joseph  should  have  it,  evidence  in  its  favor.  This  sort  of 
evidence  is  extremely  dangerous;  1.  Because  testators  often  in- 
tentionally conceal  the  truth ;  and  2.  It  is  liable  to  misunder- 
standing, forgetfulness  and  perversion  in  witnesses,  and  is  against 
the  whole  policy  of  the  law  as  to  land.  Mr.  Ewing's  argument 
is  not  supported  by  any  case  or  treatise ;  it  is  a  refinement  not 
found  in  books.  Its  fallacy  is  palpable.  It  substitutes  an  inten- 
tion for  an  act,  and  takes  the  capacity  for  granted.  If  he  in- 
tended ever  so  long,  to  make  a  will  exclusively  in  favor  of  his 
son,  and  then  is  made  to  do  it  in  extremis,  the  previous  intention 
cannot  aid  the  act.  It  is  directly  opposed  to  the  opinion  of  the 
chief -justice  to  the  jury,  that  the  declarations  were  admitted  to- 
rebut,  and  ought  to  have  no  influence  on  the  will  set  up. 

Some  declarations  are  competent,  and  there  is  a  sound,  practi- 
cal rule  to  test  them.  They  must  show  the  mind  when  the  act 
was  done — be  at  or  so  near  the  time,  as  to  be  part  of  the  res 
gestce.  But  the  evidence  in  question  is  also  exceptionable,  as  ori- 
ginal evidence.  It  is  hearsay  of  the  most  dangerous  kind,  and 
within  none  of  the  exceptions  as  to  hearsay.  B.  Vancleve  was 
not  on  oath  ;  he  may  have  meant  to  deceive,  and  we  must  trust 
to  frail  memories  for  its  accuracy. 

But  it  is  again  argued  that  they  are  the  declarations  of  a  com- 
mon ancestor,  a  party.  It  is  answered  that  he  is  no  party,  and 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  759 


Den  v.  Vancleve. 


the  declarations  of  an  ancestor  as  to  his  intentions,  are  no  evi- 
dence. 

*2.  It  is  said  the  plaintiff  made  it  good  as  rebutting  evidence : 
1.  By  alleging  that  he  was  non  compos ;  and  2.  Imposed  on. 
Answer :  two  distinct  defences  were  not  set  up.  He  was  said  to 
be  non  compos;  and  being  so,  was  made  to  execute  the  will. 
Thus  far  fraud  is  included  in  all  questions  of  non  compos,  which 
presuppose  the  formal  act.  But  fraud  as  a  distinct  defence, 
admits  the  testamentary  capacity,  and  relies  on  imposition.  He 
might  have  made  a  will,  but  you  procured  this  unfairly.  Now, 
previous  declarations  are  no  evidence  of  present  capacity,  though 
they  might,  under  circumstances,  repel  the  assertion  that  the  tes- 
tator was  circumvented.  Besides,  there  was  nothing  in  Reeder's 
or  Castner*s  evidence  which  they  could  properly  rebut.  In  1 
Yeates  108,  the  declarations  were  shortly  before  making  the  will. 
In  #  Yeates  46,  shortly  before  and  after,  so  as  to  be  part  of  the 
res  gestoe,  as  they  must  be  where  used  to  rebut  express  fraud. 

[L.  H.  Stockton  cited  5  Burr.  2805.'] 

Again :  parol  evidence  was  given  of  written  dispositions  of 
property  without  laying  a  proper  foundation  therefor.  There 
was  no  evidence  of  the  loss  of  the  wills  but  the  declarations  of 
defendant.  This  was  not  sufficient;  the  wills  ought  to  have 
been  produced.  But  the  defendant  says  that  he  does  not  claim 
under  the  will  of  1809 ;  it  was  offered,  not  as  part  of  title,  but 
proof  of  uniform  declarations.  So  much  the  worse.  He  does 
not  claim  under  it,  yet  proves  it ;  he  claims  under  a  will  of  a 
dying  man,  in  1817,  and  establishes  it,  because  a  will  was  made 
fifteen  years  before.  If  the  verbal  declarations  are  not  evidence, 
much  less  can  this  be.  Again  he  says,  that  Reeder's  testimony 
led  to  it.  Not  so.  A.  Reeder  was  not  called  to  prove  the  con- 
tents, and  only  mentions  them  in  detailing  a  conversation  of 
defendant.  But  if.  he  had  proved  them,  this  would  not  have 
legalized  proof  of  a  will  of  1809.  Again  :  the  plaintiff  did  not 
object  in  this  point  of  view.  Answer :  the  plaintiff  objected  to 
it,  1,  as  opened  ;  2,  as  proved  ;  and  he  is  not  estopped  to  urge 
any  other  reason.  These  two  questions  of  evidence  are  conclu- 
sive, if  plaintiff  be  right  on  either.  The  illegal  allegation^  «.f 

*647 


760  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


uniform  intent,  carried  all  before  them.  It  was  the  talisman 
which  dispelled  all  doubts. 

Lastly.  The  verdict  was  against  the  weight  of  evidence. 
Under  this  head  Mr.  Stockton  mingled  a  discussion  of  the  law 
with  an  investigation  of  the  facts,  and  maintained  the  case  on 
the  part  of  *the  defendant,  in  its  general  complexion,  was  gross, 
the  circumstances  attending  the  transaction  suspicious.  The 
plaintiffs'  title  is  full  and  clear,  and  defendant  must  not  only 
show  a  will  but  a  sound  mind  in  testator.  Soundness  of  mind 
is  a  mixed  question  of  law  and  fact.  The  dicta  in  old  testa- 
mentary books  are  not  to  be  relied  on  in  cases  of  wills  of  land 
under  the  statute.  Anything  would  formerly  do,  especially  if 
the  disposition  was  ad  pios  usus,  but  since  the  statute  wills  are 
conveyances  and  must  depend  for  their  operation  upon  the  same 
principles.  In  Winchester's  case,  Lord  Coke  tells  us,  the  mind 
must  be  perfect,  enabling  a  man  to  dispose  of  his  property  with 
understanding  and  discretion;  and  the  chief-justice,  in  Den\. 
Johnson,  has  defined  this  soundness  with  more  clearness  and  pre- 
cision and  accuracy  than  it  has  been  defined  since  the  days  of 
Lord  Coke.  South.  4^4-  It  is  to  be  drawn  from  the  situation 
of  testator  before  and  after  the  act,  as,  being  in  health  and  of 
common  understanding,  or  being  sick  and  old,  yet  writing  or 
dictating  the  will;  but  if,  by  sickness  or  age,  he  has  lost  his 
mind  or  memory  or  is  speechless,  and  the  will  is  prepared  without 
consulting  him,  or  being  importuned  he  assents,  it  is  no  will, 
there  is  no  fact  to  prove  a  perfect  and  sound  mind.  The  dis- 
tinction between  a  general  and  particular  capacity,  a  capacity  to 
make  a  will  and  a  capacity  to  make  the  particular  will,  is  un- 
founded in  law  or  sense.  When  witnesses  are  sworn  on  the 
point  the  inquiry  is  always  general,  and  so  is  the  oath  of  an  ex- 
ecutor. Here,  the  evidence  on  both  sides  proved  the  incompe- 
tency. 

It  is  not  intended  to  go  over  the  doctrine  of  new  trial.  The 
court  wants  no  teacher  of  the  legal  alphabet.  The  rules  are  settled, 
and  many  of  them  unite  in  this  case — value  of  the  property,  free- 
hold, length  and  intricacy  of  examination,  two  judges  absent,  the 
benefit  of  trial  at  bar  in  a  great  measure  lost  by  a  full  charge  not 

*648 


2  SOUTH.]  SEJTKMI5KU  TKKM,  1819.  701 


Den  r.  Vancle\-e. 


being  delivered.  The  chief-justice  has  stated  why  this  was  so— 
that  all  were  fatigued  and  the  cause  exhau.-ted  by  argument,  but 
he  was  mistaken  ;  no  cause  is  exhausted  when  he  takes  it  up  ; 
hi-  mind  has  more  to  convince  and  instruct  and  persuade  than  he 
will  allow.  If  this  case  had  been  gone  through  by  him  the  re- 
sult might  have  been  different.  The  plaintiff's  had  a  right  to  it ; 
they  did  not  receive  it  and  cannot  be  satisfied.  The  verdict  i< 
against  the  clear  title  of  the  plaintiffs  and  the  weight  of  evidence. 
A  will  ought  not  to  be  established  on  a  sin*gle  trial  where  there 
is  real  doubt.  A  second  trial  will  be  more  satisfactory,  the 
parties  better  prepared,  the  court  enabled  to  sum  up  the  cause, 
separate  its  elements  and  take  off  false  glosses.  Such  a  trial 
ought  to  be  had,  uninfluenced  by  the  former  verdict. 

KIRKPATRICK,  C.  J. 

This  was  an  action  of  ejectment  tried  at  bar  by  a  special  jury 
and  a  verdict  for  the  defendant.  It  is  now  moved  to  set  a-ide. 
that  verdict  and  to  grant  a  new  trial. 

It  may  be  proj>er  before  we  enter  upon  the  investigation  of 
the  case  to  observe  that,  from  the  course  of  the  circuits,  it  became 
necessary  for  Justice  Rosseli  to  leave  the  court  before  the  <-nu~v 
was  called  on,  and  for  Justice  Southard  before  it  was  closed  and 
committed  to  the  jury,  so  that,  in  point  of  advisement,  it  was 
little  more  than  a  trial  before  a  single  judge  at  the  circuit. 

The  case  was  this  :  Benjamin  Vancleve,  late  of  Lawrence,  in 
the  county  of  Hunterdon,  was,  in  his  lifetime,  and  at  the  time 
of  his  death  seized  and  possessed  of  a  certain  plantation  and 
tract  of  land,  containing  nearly  two  hundred  acres,  and  estima- 
ted to  be  worth  $12,000  or  upwards.  He  left  three  children, 
that  is  to  say,  two  daughters,  Phebe  Stevens,  the  wife  of  John 
Stevens,  and  Elizabeth  Clarke,  the  wife  of  Israel  Clarke,  who, 
together  with  their  hqsbauds,  are  the  lessors  of  the  plaintiff',  and 
one  son,  that  is  to  say,  Joseph  Vancleve,  who  is  the  defendant 
in  this  cause.  The  daughters  claim,  each,  one-third  part  of  th«- 
said  plantation  as  heirs  of  their  deceased  father,  under  tin-  >tat- 
ute;  the  son,  who  is  in  possession,  opposes  this  claim  by  SHI  ing 
up  a  will  by  which  the  whole  is  devised  to  him  in  fee  ;  and  the 

*649 


762  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


daughters,  thereupon,  to  support  their  claim,  aver  that  their  said 
father,  at  the  time  of  making  the  said  pretended  will,  was,  by 
reason  of  a  severe  paralytic  aifection,  of  which  he  soon  after 
died,  of  non-sane  mind  and  memory,  and  that,  therefore,  the  said 
will  is  not  good  and  effectual,  in  the  law,  to  bar  them  of  their 
inheritance.  And  whether  this  be  so  is  the  single  question. 

The  trial  lasted  many  days ;  a  great  number  of  witnesses  were 
examined  on  each  side ;  the  testimony  was  summed  up  by  the 
counsel  with  much  ability;  the  jury  retired  from  the  bar,  in  a 
measure,  without  the  advice  of  the  bench,  and  after  a  delibera- 
tion of  four  or  five  hours,  returned  with  a  verdict  for  the 
defendant. 

The  plaintiffs  now  come  into  court  and  move  for  a  new  trial, 
*and  assign  their  reasons,  which,  though  six  in  number,  may  be 
reduced  to  these  three : 

1.  Because  Abigail  Coulter,  a  witness  produced  by  the  defend- 
ant and  objected  to  by  the  plaintiffs  for  want  of  competent  in- 
formation, was  admitted  by  the  court  to  be  sworn  without  being 
interrogated  as  to  her  knowledge  of  the  nature  and  obligation  of 
an  oath. 

2.  Because  the  court  permitted  the  declarations  of  the  deceased 
from  the  year  1802  until  the  year  1814,  as  to  his  intentions  with 
respect  to  the  disposition  of  his  estate,  and  also  his  declarations 
as  to  the  contents  of  certain  former  wills,  to  be  given  in  evidence 
to  the  jury.    And — 

3.  Because  the  verdict  was  contrary  to  evidence. 

Before  we  enter  upon  the  consideration  of  any  one  of  these  rea- 
sons, however,  it  may  be  proper  to  take  a  little  notice  of  some  of 
the  objection  sraised  by  the  defendant,  which  meet  us  at  the  very 
threshold,  and  which,  if  well  founded,  put  an  end  to  our  inquiries. 

He  says  there  can  be  no  new  trial  after  a  trial  at  bar — in  eject- 
ment, by  a  special  jury,  and  a  verdict  for  the  defendant — where 
there  is  evidence  on  both  sides. 

It  is  true  that  before  the  doctrine  of  new  trials  was  well  settled 
we  find  sayings  in  the  books  which  seem  to  countenance  every 
one  of  these  objections.  But  since  the  case  of  Bright,  executor 
of  Crips,  v.  Eynon,  Burr.  395,  that  doctrine  is  placed  upon  a  more 

*650 


2  SOUTH.]   '      SEPTEMBER  TERM,  1819.  763 


Den  t.  Vaucleve. 


certain  basis,  and  is  governed  by  more  clear  and  rational  prin- 
ciples. Lord  Mansfield,  in  that  case,  traces  the  doctrine  to  its 
origin,  shows  that  it  necessarily  became  the  substitute  of  the 
ancient  writ  of  attaint,  and  that  without  it  the  trial  by  jury,  at 
tin-  day,  could  not  exist,  or,  existing,  could  not  subserve  the  great 
purposes  of  distributive  justice.  He  shows,  too,  that  a  new  trial 
is  quite  as  reasonable  after  a  trial  at  bar  as  at  nisi  prius,  and, 
indeed,  more  so,  and  that  it  is  just  as  necessary  in  actions  of  eject- 
niriit  as  in  other  actions.  In  the  case  of  Goodtitle  v.  Clayton, 
Burr.  2224,  he  tells  us  the  old  objection  against  granting  new 
trials  in  ejectment,  because  another  action  may  be  brought,  had 
been  overruled  again  and  again.  And,  indeed,  what  is  there  in 
it  ?  Would  the  defendant  gain  by  putting  the  plaintiff  to  a  new 
ejectment,  or  would  he  be  placed  in  a  better  situation  ?  Would 
his  expenses  be  less,  or  his  possession  sooner  quieted  ?  Certainly 
*not.  If  the  justice  of  the  case,  therefore,  requires  a  reconsider- 
ation, the  court  will  never  prevent  it  by  loading  it  with  unneces- 
sary costs  or  protracting  it  by  unnecessary  delays.  The  true 
rule  upon  this  subject  as  it  is  now  settled  is  this :  that  when  jus- 
tice has  not  been  done,  in  the  opinion  of  the  court,  in  one  trial,  the 
party  is  ENTITLED  to  another,  and  under  special  circumstances  the 
court  will  grant  a  third,  (a)  This  is  so  well  settled  that  it  has 
been  laid  down  by  Sir  William  Blackstone  himself  as  a  maxim 
in  the  law. 

It  has  not  been  unusual,  indeed,  for  popular  declaimers,  and, 
sometimes,  as  if  to  overawe  the  judges,  to  deny  this  exercise  of 
power  in  the  courts  as  an  assumed  power,  encroaching  upon  the 
prerogative  of  jurors  and  striking  at  the  very  root  of  the  trial 
by  jury  itself.  But  when  it  shall  be  considered  that  it  is  a 
principle  interwoven  with  the  very  texture  of  our  juridical 
system  that  the  verdict  of  a  jury  shall  not  be  absolutely  conclu- 
sive, but  shall  be  liable  to  be  inquired  of  in  some  form  or  other ; 

(a)  Hutchiwon  v.  Oolcman,  5  Hal.  74;  Lioyd  v.  Newell,  S  Hod.  X96  ;  Power* 
v.  Butler,  S  Or.  Ch.  465;  Oorlies  v.  Little,  S  Or.  S7S ;  Bell  ads.  Shield*,  4  Harr. 
9S;  Bnylan  ads.  Meeker,  4  Dutch.  SSO,  476 ;  Chamberlain  v.  Letson,  ante  459 f 
Fan  Blarcom  v.  Kip,  2  Dutch.  351 ;  Byerson  v.  Morris  Canal,  4  Dutch.  97 ; 
Knickerbocker  Ice  Co.  v.  Andenon,  S  Vr.  S3S  ;  Fuller  r.  Carr,  4  Vr.  157 ;  Den 
v.  Ayre*,  1  Oi .  15S. 

*651 


764  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


when  it  shall  be  considered  that  in  the  early  periods  of  its  his- 
tory this  was  done  by  an  attaint  against  the  jurors  themselves 
for  their  false  verdict,  in  which  they  were  personally  responsible, 
and  that,  too,  as  it  often  happened  where  the  error  was  of  mis- 
take only,  and  not  of  design ;  and  when  it  shall  be  considered 
further  that  the  doctrine  of  new  trial  as  now  established  has,  in 
modern  times,  been  substituted  in  the  place  of  this  more  severe 
remedy  merely  for  the  easement  of  the  jurors  and  the  attainment 
of  justice,  such  declamation  will  be  wholly  lost  not  only  upon 
the  court,  but  also  upon  the  populace  whose  passions  it  is  in- 
tended to  excite. 

Pursuing  his  objections,  however,  the  defendant,  with  some 
degree  of  triumph,  has  said  that  no  judge  on  earth  has  ever 
granted  a  new  trial  under  all  the  circumstances  above  stated.  Let 
us  see. 

The  case  of  Wood  v.  Ounstow,  Styles  4-62,  4.66,  the  first  case 
•of  a  new  trial  which  we  have  on  record,  was  after  a  trial  at  bar. 
The  case  of  Musgrove  v.  The  Mayor  of  Applebly,  Ld.  Raym. 
1358,  was  a  trial  at  bar,  and  a  new  trial  was  granted,  though 
•there  was  evidence  on  both  sides,  because  the  verdict  was  contrary 
to  the  opinion  of  the  court.  The  case  of  Tilley  v.  Roberts,  cited 
in  the  above  case,  was  a  trial  at  bar  upon  the  issue  compos  vel 
non,  the  very  question  here,  and  a  new  trial  was  granted  upon 
the  fact,  though  there  was  evidence  on  both  sides.  In  the  case  of 
Smith  *v.  Parkhurst,  Strange  1105,  it  is  said  where  the  verdict 
is  against  evidence,  the  trial  at  bar  makes  no  difference.  The  case 
of  Goodtitle  v.  Clayton,  cited  above,  was  a  case  in  ejectment,  tried 
•at  bar  by  a  special  jury,  and  yet  a  new  trial  was  granted  because 
•the  verdict  was  contrary  to  evidence.  The  case  of  Den,  ex  dem. 
Chew,  v.  Driver,  Coxe  166,  in  this  court,  was  an  ejectment  by  a 
special  jury  and  a  verdict  for  the  defendant,  and  yet  a  new  trial 
was  ordered  ;  and  the  case  of  Den,  ex  dem.  Snedecker,  v.  Allen, 
Penn.  35,  in  this  court  also,  was  in  the  same  circumstances. 

We  find  cases,  then,  in  which  new  trials  have  been  granted  in 
.all  the  circumstances  stated,  individually,  and  some  of  them 
comprising  many  of  them  together,  and  though  we  should  not 
find  one  which  comprises  them  all,  yet  that,  of  itself,  affords  no 

*652 


2  SOUTH.]         SKITKMI5KK  TERM,  1819.  765- 


Den  r.  Vancleve. 


conclusion  iii  favor  of  the  defendant.  We  dispose  of  these  ob- 
jections, then,  as  having  no  foundation  in  the  law,  and  proceed 
to  consider  the  reasons  assigned  by  the  plaintiffs  for  setting  aside 
tin-  verdict. 

1.  And  first.  Because  the  court  admitted  the  witness  Abigail 
( 'in liter  to  be  sworn  without  interrogating  her  as  to  her  knowledge 
of  the  nature  and  obligation  of  an  oath. 

To  be  a  witness  is  a  personal  privilege,  or  shall  I  not  rather 
say  it  is  one  of  the  distinguishing  rights  of  a  free  citizen  ?  Not 
only  parties  litigant,  but  the  witness  himself  also  has  a  deep  in- 
terest in  preserving  it  entire.  This  right,  therefore,  cannot  be 
impugned,  interrupted  or  taken  away  unless  for  lawful  causes 
and  by  lawful  means.  These  causes,  so  far  as  they  are  personal 
or  go  to  the  capacity  of  the  witness,  are  principally  these  three — 
the  want  of  discretion,  as  in  the  case  of  infants ;  the  want  of 
intellectual  powers,  as  in  the  case  of  idiots,  lunatics  and  mad- 
men ;  and  the  want  of  religious  principle  and  belief,  as  in  the 
case  of  those  who  do  not  believe  in  the  being,  perfections  and 
providence  of  God,  nor  in  a  future  state  of  rewards  and  punish- 
ments, where  he  that  beareth  false  witness,  and  so  taketh  the 
name  of  his  God  in  vain,  shall  not  be  held  guiltless,  (a) 

Upon  the  allegation  of  any  one  of  these  causes,  when  the  wit- 
ness comes  to  the  book,  the  truth  of  the  fact  must  first  be  tried, 
and  then  the  judgment  of  the  law  be  pronounced  upon  it.  As 
to  the  mode  of  this  trial  I  have  not  been  able  to  find  anything; 
very  satisfactory  upon  it  by  way  of  direct  decision.  So  far  as  I 
can  collect,  however,  and  so  far  as  I  can  reduce  the  thing  to 
principle,  the  trial,  which  must  always  be  by  the  judges,  is,  in 
the  first  two  cases,  by  inspection  only,  upon  the  general  principle 
that  infancy  and  idiocy  are  triable  by  inspection,  and,  in  the 
last,  always  by  witnesses.  In  the  first  two,  the  judges  inspect 
by  putting  interrogatories  in  order  to  discover  not  only  the 
fact,  but  also  the  degree  of  indiscretion  or  of  intellectual  de- 
fa)  Donnelly  v.  State,  2  Dutch.  506,  60S;  Miller  v.  Miller,  1  Or.  Ch.  141 ; 
Smith  v.  Drake,  8  C.  E.  Or.  SOS;  see  Stale  v.  Bailly,  Perm.  *416 ;  Vaughn  v. 
Perrint,  Penn.  *728 ;  Fries  v.  Bruyler,  7  Hal.  79;  State  v.  Fox,  1  Dutch.  566; 
Van  Houten  v.  Van  Houten  (in  chancery),  Hal.  Dig.  924  \  61. 

*653 


766  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


jficiency,  and  admit  or  reject  the  witness  according  as  that  is 
found,  for  infancy  and  lunacy  are  not  absolute  bars ;  but  in  the 
last  case,  that  is,  the  case  of  infidelity,  if  the  fact  be  found,  the 
bar  is  absolute. 

But  the  case  before  us  comes  within  no  one  of  these.  The 
witness  is  of  the  age  of  sixteen  years,  brought  up  in  a  Christian 
•country  and  in  a  Christian  family.  She  has,  therefore,  in  her 
favor,  not  only  the  common  presumption  but  also  a  special  pre- 
sumption arising  from  her  manner  of  education  ;  and,  therefore, 
there  could  be  no  more  reason  for  interrogating  her  than  any 
other  witness.  The  question  then  presents  itself,  Is  the  court 
under  obligation  to  interrogate  every  witness  whom  the  party 
may  think  fit  thus  to  'challenge,  of  whatever  age,  and  under  what- 
ever circumstances  ?  I  have  been  able  to  find  nothing  in  the 
books  to  countenance  such  a  position,  unless  it  be  some  cases  of 
late  years  (and  of  no  authority  here)  at  the  Old  Bailey,  in  Eng- 
land, where  the  very  offscourings  of  so'ciety  are  frequently  brought 
up  as  witnesses,  and  the  judges,  therefore,  seem  to  take  consider- 
able latitude ;  and  even  these  cases  are  so  loosely  reported  that 
nothing  certain  can  be  collected  from  them.  The  position,  there- 
fore, that  the  court  is  obliged  to  interrogate  every  witness  to 
whom  objection  may  be  made  is  thought  to  be  too  broad,  and 
altogether  inadmissible  as  a  rule  of  practice.  It  is  nevertheless 
true  that  if  one,  even  without  any  positive  disbelief,  and  though 
he  should  be  of  full  age  and  possess  the  rational  powers  common 
to  man,  should,  notwithstanding,  be  so  ignorant  as  to  have  no 
just  conceptions  of  the  nature  of  an  oath,  and  of  the  obliga- 
tions and  penalties  which  it  imposes,  he  would  be  inadmissible 
as  a  witness.  But  then  the  fact  must  be  proved  aliunde,  for  it 
is  not  matter  triable  by  inspection,  nor  can  he  be  examined  to 
impeach  his  own  absolute  rights,  and  still  less  can  he  be  exam- 
ined on  oath,  for  the  very  objection  is  that  he  has  not  such  knowl- 
edge of  the  nature  of  an  oath  as  to  render  it  in  any  way  obliga- 
tory upon  him.  No  such  proof  aliunde  was  offered  here,  and 
therefore,  upon  the  whole  view  of  the  case,  it  is  thought  that  this 
witness  was  properly  admitted  to  the  book. 

*But  even  if  it  were  otherwise  it  would  be  no  ground  for  a 

*654 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  767 


Den  v.  Vancleve. 


new  trial  under  existing  circumstances,  for,  in  the  course  of  the 
•examination,  she  disclosed  the  fact  that  she  had  been  taught  to 
read  the  Bible,  and  usually  attended  the  public  worship  in  a 
Christian  church  ;  after  which  the  court  would  never  grant  a  new 
trial  upon  the  presumption  of  her  ignorance. 

2.  Secondly.  As  to  the  admissions  of  the  declarations  of  the 
deceased,  with  respect  to  his  intentions  in  the  disposition  of  his 
property  and  his  declarations  with  respect  to  the  contents  of  his 
former  vnlls.  (a) 

It  had  come  out,  in  the  course  of  the  trial  that  the  defendant 
lived  with  his  father,  in  his  house ;  that  he  had  him,  in  some 
degree,  under  his  care  and  subject  to  his  control ;  and  it  had  also 
oome  out  that  there  had  subsisted  a  friendly  intercourse  between 
the  deceased  and  his  daughters,  so  that  no  reason  could  be  as- 
signed why  he  should  disinherit  them  in  favor  of  their  brother, 
and  to  rebut  or  do  away  the  force  of  these  circumstances  this  tes- 
timony was  admitted.  And  though  I  was  then  satisfied  with  it, 
in  the  light  in  which  it  was  placed,  yet  upon  a  careful  review  of 
the  whole  matter,  I  now  think  the  admission  of  it  was  inconsist- 
ent with  principle.  If  we  consider  the  thing  carefully  we  shall 
find  that  these  circumstances  are  not  peculiar  to  this  case,  but 
precisely  such  as  must  necessarily  attend  most  cases  turning  upon 
the  capacity  of  the  testator.  A  man  enfeebled  by  age  or  disease 
must  always  be  under  the  care,  protection  and  government  of 
somebody ;  this  somebody  must  generally  be  one  of  his  children 
who  lives  with  him  in  his  house,  who  administers  to  his  wants 
and  his  wishes,  who  has  the  direction  of  his  affairs,  who  aids  him 

(a)  Declarations  of  testator  inadmissible,  Yard  v.  Carman,  Penn.  *9S6  ;  Adam- 
ton  v.  Ayres,  1  Hal.  Ch.  349  ;  Account  of  Exrs.  of  Samuel  Haines,  4  Hul.  Ch. 
606;  Vernon  v.  Marsh,  S  Or.  Ch.  SOS;  Smock  v.  Smock,  S  Stock.  157;  AIuf*a- 
kar  v.  Mcuaaker,  £  Bens.  S64  ;  Leigh  v.  Saridg*,  1  McCart.  125;  Sayre  v.  Sayrt, 
i  Or.  495;  Boytan  ads.  Meeker,  4  Dutch.  274,  £91;  Lynch  v.  Clements,  9  C.  E. 
Gr.  437 ;  but  see  Day  v.  Day,  S  Or.  Ch.  549;  Speer  v.  Speer,  1  McCart.  £40; 
Boylan  v.  Meeker,  2  McCart.  S10.  Aliler  where  a  latent  ambiguity  exists,  Den 
v.  Cubberly,  7  Hal.  309;  Evans  v.  Hooper,  £  Or.  Ch.  £04;  Holton  ads.  }\'hit?, 
3  Zab.  330;  Leigh  v.  Savidge,  1  McCart.  1£5  ;  Nevius  v.  Martin,  I  Vr.  465;  Hal- 
*ted  v.  Meeker,  S  C.  E.  Or.  136;  Jackson  v.  Perrine,  6  Vr.  144;  Oraydon  v. 
Giaydon,  S  C.  E.  Or.  £30. 


768  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


in  this  last  solemn  duty,  and  who  will,  almost  necessarily,  be  one 
of  the  objects  of  his  bounty ;  and  though  there  may  exist  the 
purest  parental  affection  and  filial  duty  between  him  and  his 
other  children,  this  one  will  generally  be  preferred  in  the  distri- 
bution of  his  estate,  and  that,  too,  upon  the  soundest  principles 
of  equity  and  justice.  But  as  circumstances  like  these  can  never 
be  made  the  ground  of  impeaching  the  will  for  the  incapacity  of 
the  testator,  so  neither  can  they,  when  so  impeached,  be  made  the 
ground  of  admitting  testimony  to  support  it  which  would  other- 
wise be  unlawful.  For  why  break  down  settled  principles  and 
let  in  testimony  to  obviate  circumstances  in  themselves  lawful  and 
necessary,  and  which  prove  neither  his  capacity  nor  incapacity  ? 

*Besides,  the  plaintiffs  did  not  put  themselves  upon  these 
circumstances.  They  did  not  take  the  ground  that  the  defendant 
had  deceived  his  father ;  that  he  had  imposed  upon  him  one  will 
when  he  thought  he  was  signing  another,  or  that  he  had  over- 
awed him  by  fear  or  circumvented  him  by  cunning  in  this  mat- 
ter, and  much  less  that  the  injustice  of  the  will  was  a  proof  of 
the  incapacity  of  the  testator.  They  placed  themselves  upon  the 
position  and  adduced  testimony  to  prove  that  the  deceased,  by 
the  immediate  visitation  of  God,  had  been  rendered,  in  a  very 
great  degree,  incapable  of  physical  and  wholly  incapable  of 
moral  action.  They  did  not  rest  upon  the  ground  that  he  had 
become  weak  through  the  infirmity  of  old  age,  that  his  memory 
had  thereby  become  treacherous  and  his  judgment  impaired,  but 
that  by  this  afflictive  dispensation  from  heaven  he  had  become  at 
once  totally  and  absolutely  disabled  and  prostrated,  both  in  body 
and  mind  ;  that  he  merely  breathed,  but  that,  as  to  almost  every- 
thing else,  he  was  like  a  dead  man.  This  was  the  position  taken, 
and  to  establish  this  was  all  their  principal  testimony  directed. 
The  plaintiffs,  then,  having  taken  this  ground  and  placed  them- 
selves upon  this  single  point,  they  were  at  liberty  to  give  evi- 
dence of  no  fact  inconsistent  with  it ;  this  point  they  were  obliged 
to  maintain,  and  the  defendant  must  meet  them  there  and  stand 
or  fall  in  the  conflict.  As  rebutting  testimony,  then,  in  which 
light  alone  this  was  admitted,  it  appears  to  me  now  to  have  been 
improper  because  there  was  nothing  to  rebut ;  the  plaintiffs  had 

*655 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  769 


Den  ».  Vancleve. 


given  no  testimony,  they  could  lawfully  give  no  testimony  to  which 
it  could  apply  as  a  rebutter.  And  the  loose  sayings  of  witnesses, 
unsought  for  by  the  plaintiffs,  or  relating  only  to  the  testimony 
offered  by  the  defendant,  which  may  seem  to  go  beyond  this 
point,  even  if  such  could  be  found,  could  make  no  difference. 

This,  too,  seems  to  have  been  the  understanding  of  the  de- 
fendant himself.  He  did  not  offer  this  testimony  as  admissible, 
under  the  particular  circumstances  of  this  case  only  or  with  a 
vic\\  to  obviate  the  inferences  which  might  be  drawn  from  them. 
He  insisted  before  the  court  and  maintained  before  the  jury,  also, 
that  the  testimony  was  lawful,  not  as  rebutting  testimony,  but 
upon  the  most  broad  and  general  principles ;  that  the  settled  de- 
sign of  the  testator,  which  it  was  intended  to  prove,  ought,  upon 
the  rules  of  right  reason,  to  be  received  as  confirmatory  of  the 
*will,  and  as  superseding  the  necessity  of  proving,  that  clear  dis- 
cretion and  that  full  exercise  of  the  mental  powers  at  the  time  of 
the  execution  of  it  which  might  otherwise  be  required  ;  in  short, 
that  the  previous  declarations  of  the  testator  respecting  his 
testamentary  dispositions,  at  any  period,  how  remote  so- 
ever, may  always  be  given  in  evidence  to  support  his  will. 
The  court  not  being  able,  at  that  time,  to  accede  to  this  doc- 
trine in  the  full  extent  in  which  it  was  laid  down,  themselves 
raised  this  distinction  in  favor  of  this  particular  case,  founded 
upon  its  peculiar  circumstances,  and,  upon  that  distinction, 
admitted  the  testimony.  But  if  there  be  no'  ground  for  such 
distinction,  if  the  circumstances  upon  which  it  was  raised 
be  precisely  the  same  as  must  accompany  all  cases  where  'this 
question  is  made,  if  the  plaintiffs  did  not  rest  upon  these  circum- 
stances to  invalidate  the  will,  but  placed  themselves  wholly  upon 
another  point,  and  if  even  the  defendant  himself  raised  no  such 
distinction,  then  we  may  safely  lay  it  out  of  the  case  and  consider 
the  question  upon  the  broad  ground  upon  which  the  defendant 
has  placed  it.  In  this  view  it  was  not  new  to  me  on  the  trial. 
It  had  been  raised  more  than  once  at  the  circuits,  and  therefore 
had  become  the  object  of  my  attention  not  only  there  but  after- 
wards in  my  chambers,  upon  the  review  of  what  had  been  done. 
I  had  always  negatived  it  in  court,  and  upon  the  review  had 
*656  "  49 


770  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


been  more  than  satisfied  that  I  had  done  so.  If  a  question  could 
be  raised  upon  the  intention  in  the  will,  this  sort  of  testimony 
might,  with  more  plausibility,  be  offered  to  explain  and  fix  that 
intention.  And  yet,  even  there,  little  regard  is  paid,  either  by 
courts  of  law  or  courts  of  equity,  to  the  declarations  of  the  testa- 
tator,  either  before  or  after  the  making  of  his  wills,  because  pos- 
sibly they  might  be  made  by  him  on  purpose  to  disguise  what 
he  was  doing,  to  keep  the  family  quiet,  to  procure  good  treat- 
ment from  those  who  lived  with  him  in  his  house,  or  for  other 
secret  motives  which  after  his  death  cannot  be  discovered.  This 
doctrine  is  settled  in  Lord  Falkland's  Case,  2  Vernon  337,  6*25. 
But  if  such  declarations  cannot  be  received  to  explain  a  doubt 
arising  upon  a  will  which  is  admitted  to  be  authentic,  how  mucli 
less  can  they  be  received  to  set  up  and  establish  a  will  the  au- 
thenticity of  which  is  the  very  matter  in  dispute.  If  because 
the  deceased,  in  his  better  days,  declared  he  intended  to  give  this 
plantation  to  his  son,  the  jury  could  lawfully  draw  the  conclu- 
sion that  he  was  of  sound  and  disposing  mind  and  memory  *when 
he  executed  the  will,  then  the  evidence  was  lawful,  but  if  not,  it 
could  only  tend  to  lead  them  astray.  Now,  how  a  declaration  of 
such  intention  made  ten  years  ago  can  afford  ground  for  such  a 
conclusion,  how  it  can  prove  or  at  all  strengthen  the  belief  that 
on<3  is  of  sound  and  disposing  mind  and  memory  now,  is  incom- 
prehensible to  me.  And  without  such  sound  and  disposing  mind 
and  memory  now;  reason  teaches  and  the  statute  declares,  the  tes- 
tament is  void.  To  supply  the  want  of  mental  capacity,  or  to 
make  up  its  imperfection  by  substituting  in  its  place  previous 
intention,  would  put  it  in  the  power  of  those  about  the  bed  of 
the  dying  to  dispose  of  his  property  in  almost  every  instance. 
Most  men,  towards  the  close  of  life,  speak  upon  this  subject ; 
they  express  to  their  confidential  friends  their  views  and  inten- 
tions ;  they  speak  of  particular  advancements  and  bequests,  some- 
times seriously  and  sometimes  not,  sometimes  with  intent  to 
make  them,  and  sometimes  not,  and  always  liable  to  change ; 
and  yet  it  would  be  but  to  get  up  a  will  embracing  the  objects 
thus  declared,  or  some  of  them,  merely  to  give  color  to  the  fraud, 
and  the  whole  estate  is  gone.  It  would  be  but  to  prove  declara- 

*657 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  771 


Den  v.  Vancleve. 


•tions  of  previous  intention,  of  settled  design,  and  a  will,  in  some 
respects,  corresponding  with  such  design,  and  it  is  no  great  mat- 
ter whether  the  deceased  had  his  senses  or  not. 

But  this  will  not  do.  Let  us,  for  a  moment,  reverse  the  position. 
Let  us  say  that  declarations  of  this  kind  may  be  given  in  evidence 
to  impugn  or  destroy  a  will,  and  where  will  it  lead  us?  A  man's 
views  and  circumstances  change ;  the  situation  and  condition  of 
his  family  change.  What  he  intended  to  do  and  what  it  would  have 
been  most  proper  for  him  to  do  twenty  years  ago  may  be  just  the 
reverse  now.  Shall  we,  then,  be  at  liberty  to  rake  up,  and  pre- 
sent to  a  jury  all  the  declarations  he  ever  made,  in  order  to  over- 
turn a  will  executed  in  the  decline  of  life,  when,  perhaps  the  feeble- 
ness of  old  age,  may  give  color  to  the  pretence  that  he  was  inca- 
pable of  such  a  transaction?  It  will  not,  I  think,  be  pretended. 

If  the  doctrine  contended  for  by  the  defendant  were  really  the 
doctrine  of  the  law,  the  principle  itself  is  so  important,  and  the 
<«ses  to  which  it  is  applicable  must  necessarily  have  been  so  numer- 
ous since  the  statute  of  wills,  that  we  might  well  have  expected 
to  see  it  settled  by  a  course  of  decision.  Instead  of  this,  so 
often  as  the  question  has  been  raised  before  me,  Hudson's  *  Case, 
reported  in  Skinner  (a  book  of  itself  of  no  great  authority),  has 
been  the  only  one  relied  upon  to  support  it.  And  to  that  one  it 
has  been  answered,  and  I  think  satisfactorily,  that  the  evidence 
there  was  not  objected  to ;  that  there  was  no  decision  concerning 
it,  and  that  the  court,  in  determining  the  case,  did  not  put  their 
•opinion  upon  it.  And  upon  this  trial  the  counsel  for  the  de- 
fendant, no  doubt  because  they  were  sensible  it  could  not  sup- 
port them,  did  not  even  cite  that  case.  The  only  authority  which 
they  did  cite  was  two  cases  from  Pennsylvania,  one  of  which,  in 
my  judgment,  does  not  apply,  because  the  declarations  there 
proved  were  so  near  to  the  time  of  the  execution  of  the  will  as 
to  be  connected  with  it,  and  to  make  a  part  of  the  transaction  ; 
they  elucidated  the  state  of  mind  of  the  testator  at  the  time,  and 
as  to  the  other  it  is  not  reported  with  sufficient  accuracy  to  see 
its  direct  bearing.  Besides,  it  is  well  known  that  the  people  of 
Pennsylvania  have  a  jurisprudence  of  their  own,  probably  im- 
posed upon  them  at  first  by  the  imperfection  of  their  juridical 

*658 


772  NEW  JERSEY  SUPREME  COURT.     [5  LAW~ 


Den  v.  Vancleve. 


system,  which  would  but  ill  comport  with  the  great  principle* 
of  the  common  law  by  which  we  are  governed.  Certain  it  is 
that  if  we  were  to  take  up  the  decisions  of  all  the  states  founded 
as  they  are  upon  local  customs,  colonial  necessities,  and  legisla- 
tive innovations,  and  attempt  to  make  them  the  rule  of  adjudica- 
tion here,  we  should  not  only  disfigure  and  break  down  the- 
ancient  temple  of  justice,  in  which  we  so  much  glory,  but  pile 
up  in  its  place  a  mass  of  broken  fragments,  without  symmetry,, 
form  or  beauty. 

But  there  is  still  another  view  of  this  subject.  There  was  a 
discrimination  raised  by  the  plaintiffs  at  the  trial,  and  it  is  still 
insisted  upon  in  this  argument  between  the  testator's  declarations 
as  to  his  intentions,  and  his  declarations  as  to  the  contents  of  his 
former  wills ;  and  it  was  said  that  even  if  the  former  should  be 
admitted,  there  could  be  no  pretence  for  the  admission  of  the 
latter ;  that  these  wills  had  been  proved  to  have  been  in  the  pos- 
session of  the  defendant  himself,  and  that,  therefore,  being 
neither  produced  nor  accounted  for,  their  contents  could  not  be 
given  in  evidence  in  his  favor.  Inasmuch,  however,  as  the  de- 
fendant, at  the  time  of  this  discussion,  had  set  up  no  pretence  of 
founding  a  title  to  the  lands  upon  these  old  wills,  and  had  offered 
to  prove  the  declarations  of  his  father  touching  their  contents, 
for  the  purpose  of  further  confirming  his  uniform  and  settled 
design  only,  no  essential  difference  was  then  seen  between  the 
two  parts  of  *this  testimony ;  and,  therefore,  the  latter  was  ad- 
mitted as  well  as  the  former.  This  was  certainly  contrary  to  the 
rules  of  evidence.  These  wills  had  been  proved  to  be  in  the 
possession  of  the  defendant  by  his  own  daughter ;  the  contents 
of  them,  therefore,  could  not  be  proved  in  his  favor  until  he  had 
accounted  for  the  papers  themselves.  And  how  dangerous  it  is 
to  depart  from  these  settled  rules  on  any  specious  distinctions  not 
found  in  the  books,  is  very  manifest  from  this  case ;  for  the  exe- 
cution of  the  will  of  1814  having  been  before  proved  by  one  of 
the  subscribing  witnesses  thereto,  and  the  contents  of  it,  as  to 
this  plantation,  being  now  proved  by  the  declarations  of  the 
deceased,  and  by  these  declarations  only,  the  defendant,  probably 
distrusting  his  own  proof  of  the  will  in  question,  resorted  to  that 

*659 


SOUTH.]          SEPTEMBER  TERM,  1819.  773 


Den  e.  Vancleve. 


•of  1814,  and  maintained,  before  the  jury,  that  if  the  former 
had  not  been  satisfactorily  proved  he  was  still  entitled  to  the 
land  under  the  latter.  Now  that  the  will  of  1814,  whether  ad- 
missible as  evidence  of  previous  design  or  not,  could  not,  mi  IT 
the  circumstances  stated,  be  admitted  as  lawful  evidence  of  title 
in  the  defendant,  or,  in  other  words,  as  an  instrument  that  could 
convey  the  land  to  him,  is  a  position  too  clear  to  admit  of  argu- 
ment. And  yet,  upon  which  of  these  wills  the  verdict  was 
really  founded,  remains  altogether  doubtful,  especially  if  we 
consider  the  manner  in  which  it  was  urged,  and  the  great  credit 
of  the  counsel  who  put  himself  upon  it.  It  was,  perhaps,  most 
natural  for  men  not  much  acquainted  with  legal  niceties  and 
•  li>t!  notions,  upon  this  evidence  having  been  admitted  as  lawful, 
to  place  their  verdict  upon  the  will,  concerning  the  execution  of 
which  there  was  no  doubt. 

Upon  each  of  these  views  of  the  subject,  now  that  we  see  the 
whole  bearing  of  it,  I  think  the  admission  of  this  testimony, 
touching  the  declarations  of  the  deceased  as  to  his  intentions  in 
<he  disposition  of  his  property,  and  as  to  the  contents  of  his 
former  wills,  was  unlawful,  and  that  the  probability  is  that  the 
verdict  was  wholly  founded  upon  it. 

3.  In  the  third  place.  Because  the  verdict  was  contrary  to  the 
•evidence. 

After  the  plaintiffs  had  closed  that  part  of  the  evidence  which 
goes  to  establish  the  incapacity  of  the  deceased,  the  defendant 
introduced  testimony  to  prove  these  three  things — first,  that  the 
deceased,  for  a  number  of  years  before  his  death,  had  had  an  in- 
tention to  give  this  land  to  his  son,  and  that  he  had  actually 
car*ried  this  intention  into  effect  in  his  wills  of  1809  and  1814  ; 
secondly,  that  Phebe  Stevens,  one  of  the  plaintiffs,  had  purloined 
these  wills,  and  thirdly,  that  the  deceased,  at  the  time  of  the  exe- 
cution of  the  will  now  in  question,  notwithstanding  what  had 
been  said  to  the  contrary,  was  of  sound  and  disposing  mind  and 
memory.  Of  the  first  part  of  this  testimony,  touching  the  de- 
<-eased's  declarations  as  to  his  settled  intentions,  I  have  already 
spoken ;  in  the  second  part,  respecting  the  purloining  of  the 
Avills,  the  defendant  wholly  failed,  there  being  nothing  in  it  to 

*660 


774  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


raise  even  the  slightest  suspicion  either  against  Phebe  Stevens  or 
her  husband,  who,  it  seems,  had  been  accused,  in  turns,  of  this- 
atrocious  deed ;  and  as  to  the  third,  to  wit,  the  capacity  of  the 
deceased,  it  will  require  a  more  particular  investigation,  and  is 
made  the  subject  of  the  following  observations : 

In  every  action  of  human  life  which  proceeds  from  the  un- 
derstanding and  which  requires  the  exercise  of  the  intellectual, 
powers  of  man,  it  is  obvious  that  the  agent  must  necessarily  pos- 
sess that  understanding  and  those  powers,  otherwise  the  action 
is  not,  properly  speaking,  his ;  he  may,  indeed,  have  performed 
the  mechanical  part  of  it,  like  a  mere  machine,  but  the  essential 
part,  the  direction  of  the  mind,  that  which  makes  it  the  action, 
of  the  man,  is  not  there.  That  understanding  and  those  intel- 
lectual powers  which  are  necessary  to  enable  a  man  to  make  a 
valid  testament,  have,  in  some  books,  usually  been  denominated 
a  sound  and  disposing  mind  and  memory.  By  these  terms  it  has 
not  been  understood  that  a  testator  must  possess  these  qualities 
of  the  mind  in  the  highest  degree,  otherwise  very  few  could  make- 
testaments  at  all ;  neither  has  it  been  understood  that  he  must 
possess  them  in  as  great  a  degree  as  he  may  have  formerly  done,, 
for  even  this  would  disable  most  men  in  the  decline  of  life ;  the 
mind  may  have  been,  in  some  degree,  debilitated,  the  memory 
may  have  become,  in  some  degree,  enfeebled,  and  yet  there  may 
be  enough  left  clearly  to  discern  and  discreetly  to  judge  of  all 
those  things  and  all  those  circumstances  which  enter  into  the- 
nature  of  a  rational,  fair  and  just  testament,  but  if  they  have  so* 
far  failed  as  that  these  cannot  be  discerned  and  judged  of,  then 
lie  cannot  be  said  to  be  of  sound  and  disposing  mind  and 
•memory,  (a) 

The  language  of  our  statute  concerning  wills  differs  a  little^ 

(a)  Den  v.  Johnson,  ante  458 ;  Den,  Stevens  v.  Vancleve,  4  Wash.  C.  C.  26%  ,-- 
Den  v.  Clark,  5  Hal.  221;  Den  v.  Ayres,  1  Or.  153;  Sloan  v.  Maxwell,  2  Or. 
Ch.  563;  Andreas  v.  Weller,  2  Gr.  Oh.  604;  Ooble  v.  Grant,  2  Or.  Oh.  629  r 
Whitenack  v.  Stryker,  1  Or.  Ch.  8 ;  Lowe  v.  Williamson,!  Gr.  Ch.  82 /  Doughty 
v.  Doughty,  3  Hal.  Ch.  643;  Vanauken's  Case,  2  Stock.  187  ;  Stackhouse  v.  Hor- 
ton,  2  McCart.  202;  Turner  v.  Cheesman,  2  McCart.  2£8  ;  Den,  Trumbull  v. 
Gibbons,  2  Zab.  117  ;  Boylan  ads.  Meeker,  4  Dutch.  274;  Moore  v.  Blauvelt,  2- 
McCart.  367,  384. 


2  SOUTH.]          SEPTKMJJKK  TKKM,  1819.  775 


Den  B  Vancleve. 


from  the  language  of  the  books.  It  does  not  use  the  words 
sound  *and  disposing  mind  and  memory  at  all,  but  it  declares 
that  wills  made  by  persons  of  non-sane  mind  and  memory  shall 
not  be  good  and  effectual  in  the  law.  I  do  not  perceive  that 
there  is  any  great  difference  between  these  two  modes  of  ex- 
pression. Sane  (sanus)  means  whole,  sound,  in  a  healthful  state, 
and  is  applicable  equally  to  the  mind  and  to  the  body  (mens 
tana  in  corpore  sano),  but  I  believe  it  is  applicable  to  nothing 
else,  unless,  perhaps,  when  it  signifies  wise,  and  then  it  is  ap- 
plicable to  language  or  discourse.  If  sane,  then,  when  applied 
to  the  mind,  means  whole,  sound,  in  a  healthful  state,  non-sane 
must  mean  not  whole,  not  sound,  not  in  a  healthful  state,  that  is, 
broken,  impaired,  shattered,  infirm,  weak,  diseased,  unable,  either 
from  nature  or  accident,  to  perform  the  rational  functions  com- 
mon to  man  upon  the  objects  presented  to  it. 

Now,  the  objects  of  a  man  making  his  last  will  are — his  prop- 
erty, its  nature,  its  various  parts  and  their  relative  value ;  if  he 
is  a  father,  his  family,  their  conditions,  necessities  and  merits ; 
his  own  duties  and  obligations,  too,  as  a  father  and  their  claims 
and  expectations  as  children,  for  all  these  are  founded  in  nature 
and  in  every  code  of  law,  both  human  and  divine.  The  mind 
which  is  incapable  of  viewing,  and,  in  some  good  degree,  of 
comprehending  and  combining  these,  and  of  forming  some  ra- 
tional judgment  concerning  them,  is  incompetent  to  dispose  of 
property  by  last  will.  I  have  said  in  another  case,  and  I  now 
repeat  it,  that  all  those  sayings  to  be  found  in  the  old  books  al>out 
counting  ten,  telling  the  day  of  the  week,  naming  a  friend  &c.  (not 
to  mention  another  instance  of  still  more  doubtful  import)  as 
being  sufficient  evidence  of  testamentary  capacity,  are  wholly  out 
of  the  question  at  this  day  ;  they  cannot  have  the  smallest  effect, 
they  ought  not  to  have  the  smallest  effect  upon  rational  minds. 
Who  ever  saw  a  man,  how  insane  soever,  who  ever  saw  even  a 
bedlamite,  who  had  once  possessed  the  power  of  reason,  and  still 
possessed  the  power  of  speech,  who  could  not  do  all  this  and  ten 
times  more  ?  And  yet,  even  these  old  books,  extravagant  as  they 
are  in  this  respect,  tell  us  that  mere  monosyllabic  answers,  such 

*661 


776  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


as  yes  and  no,  to  questions  proposed  by  those  about  a  dying  bed, 
shall  not  be  received  as  evidence  of  sound  mind. 

Let  us  see,  then,  what  is  the  case  here,  and  what  the  testi- 
mony. And  in  making  this  inquiry  let  us  admit,  and  I  do  most 
unequivocally  admit,  that  every  witness  has  declared  the  truth, 
*according  to  his  impressions,  and  according  to  the  best  of  his 
remembrance  at  the  time  he  declared  it.  Indeed,  in  the  investi- 
gation which  we  are  now  making,  it  is  necessary  to  do  this.  It 
will  not  do,  when  we  are  inquiring  as  to  the  weight  of  the  evi- 
dence, to  say  the  jury  might  have  believed  this  witness  and 
disbelieved  that  one,  and  sanctify  the  verdict  upon  that  ground. 
That  would  at  all  times  totally  preclude  such  inquiry,  for  there 
is  no  case  so  bald  as  to  have  no  witness  in  its  favor.  This,  there- 
fore, is  not  the  principle.  We  are  to  take  the  whole  testimony 
together,  and,  if  we  can,  to  discover  its  true  import.  Indeed, 
the  disregarding  of  a  whole  range  of  witnesses  on  one  side,  whose 
credibility  stands  wholly  unimpeached,  and  whose  testimony  can 
be  reconciled  with  that  of  the  other  witnesses,  is,  in  itself,  a  good 
cause  for  setting  aside  a  verdict  and  reconsidering  the  cause. 
The  facts  attested,  therefore,  must  be  taken  as  established ;  the 
deduction  from  the  facts  was  the  business  of  the  jury  ;  and  upon 
this  motion,  it  is  the  duty  of  the  court  to  see  whether  that  de- 
duction has  been  lawful  and  just. 

The  deceased  being  a  man  far  advanced  in  life,  and  already 
greatly  debilitated,  both  in  body  and  mind,  was,  sometime  about 
the  month  of  May,  1817,  visited  by  a  severe  paralytic  affection, 
which  benumbed,  or  rather  entirely  destroyed  the  powers  of  his 
right  side  ;  and  he  was,  thereupon,  put  to  his  bed,  from  which 
he  never  arose.  He  continued  to  lie  in  that  situation,  gradually 
declining  with  the  progress  of  time,  till  towards  the  close  of  the 
month  of  August,  when  he  departed  this  life.  During  this  long 
confinement  he  was  visited  by  relations  and  friends  and  neigh- 
bors, of  whom  he  had  very  many,  and  very  respectable ;  they 
visited  him  in  the  morning,  in  the  afternoon,  in  the  evening ; 
they,  together  with  those  of  his  household,  watched  with  him  at 
night,  administered  to  his  wants  and  his  comforts,  fed  him, 
turned  him,  raised  him,  shifted  him  like  a  perfect  infant.  He 

*662 


SEPTEMBER  TERM,  1819.  777 


Den  t>.  Vancleve. 

never  asked  for  food  either  by  words  or  signs ;  he  never  refused 
it ;  he  never  said  he  had  enough  ;  he  never  rejected  it ;  he  took 
no  concern  about,  nor  had  any  regard  to  even  the  necessities  and 
functions  of  nature.  During  all  this  time  (except  so  far  as  I 
shall  hereafter  mention)  he  never  spoke,  he  gave  no  intelligible 
signs  of  understanding  or  volition,  only  that  with  his  left  hand 
he  would  sometimes  take  the  hand  of  a  visitor  and  seem  to  draw 
it  towards  himself;  but  whether  he  could  distinguish  persons  or 
recognize  the  countenance  of  friends  and  neighbors  could  not  be 
known,  for  he  could  discover  it  neither  by  words  nor  actions. 
Some  of  them,  indeed,  one  or  two,  I  believe,  imagined  that  he 
recognized  and  distinguished  them,  but  even  they  admit  it  was 
imagination  only.  He  could  hear,  in  some  degree,  for  he  seemed 
to  notice  the  sound  of  the  voice ;  he  had  the  power  of  raising 
his  eyes,  but  he  raised  them  in  a  wild,  unfixed  stare  which  gave 
but  little  sign  of  intelligence — nay,  rather,  as  some  of  the  wit- 
nesses  say,  of  a  total  want  of  it.  When  the  minister  of  religion, 
in  whose  cure  he  was,  called  to  visit  him,  he  spoke  to  him,  but 
he  did  not  answer ;  he  prayed  with  him,  but  he  did  not  under- 
stand ;  he  opened  to  him  his  duties  and  his  hopes,  but  he  gave 
no  assent,  except  that  at  one  time  he  thought  he  perceived  an 
inclination  of  the  head ;  and  though  this  holy  man  seemed  to 
think  that  this  pastoral  visit,  this  devotional  exercise  and  this 
consolatory  advice  might  have  been  soothing  and  refreshing  to 
his  soul,  yet  this  inclination  of  the  head  was  the  only  sign  from 
which  it  could  be  collected,  and  even  of  that  he  was  in  some 
degree  doubtful.  The  testimony  of  all  the  witnesses  (except 
what  shall  hereafter  be  mentioned)  concurs  in  establishing  these 
facts,  in  proving  this  to  have  been  the  situation  of  the  deceased 
from  the  time  he  was  taken  till  the  day  of  the  making  of  this 
will,  a  period  of  ten  weeks  and  more.  And  building  their  judg- 
ment upon  these  facts,  and  drawing  their  conclusions  from  this 
situation,  they  all  concur,  the  clergyman  excepted,  in  saying  that 
he  did  not  possess  testamentary  discretion  and  powers  of  mind. 
I  have  said,  that  to  the  concurrence  of  the  testimony  of  the 
witnesses,  as  to  the  facts  above  stated,  there  were  some  excep- 
tions. John  Phares,  one  of  the  subscribing  witnesses,  deposes 

*663 


778  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


that  the  deceased  did  frequently  call  him  by  name ;  he  does  not 
say  during  his  illness,  but  it  is  to  be  presumed  he  so  intended  -f 
he  further  deposes  that  within  four  or  five  weeks  before  the 
making  of  the  will,  when  he  called  to  see  him,  the  deceased 
asked  him  many  questions,  principally  about  his  family,  and 
about  a  dispute  which  existed  between  him  and  his  neighbor 
concerning  a  division  line  of  their  lands,  which  last,  by  the  by, 
was  a  strange  proof  of  sanity  in  a  man  in  his  situation.  Mrs. 
Phares,  also  another  subscribing  witness,  says  that  during  this 
malady  the  deceased  could  speak,  that  he  knew  her,  even  in  the 
night-time,  and  spoke  to  her,  but  she  does  not  relate  to  what 
*extent  he  spoke,  about  what,  or  what  he  said.  Charity  Smith, 
I  think  a  very  aged  and  very  respectable  lady,  a  near  relation 
of  the  defendant's  wife,  and  also  Mary  Vancleve,  the  defendant's- 
daughter,  say  that  during  this  period  the  deceased  did  speak  so  that 
he  could  be  understood  by  them,  but  to  what  amount  or  to  what 
eifect,  particularly,  they  do  not  say.  Now,  however  difficult  it 
may  be  to  reconcile  what  these  witnesses  say  on  this  matter,  with 
the  rest  of  the  testimony  and  with  the  condition  of  the  deceased, 
as  it  appeared  to  others,  yet,  as  they  are  persons  of  irreproach- 
able character,  and  have  sworn  it,  it  must  be  admitted  that  he 
had  some  knowledge  of  those  continually  with  him,  and  could 
distinguish  one  from  another ;  that  he  had  some  sort  of  articu- 
lation and  could  utter  some  words,  at  least,  so  as  to  be  understood 
by  those  around  him.  And  this,  I  believe,  is  all  they  have 
sworn. 

Let  us  take  the  condition  of  the  deceased,  then,  up  till  the 
morning  of  the  making  of  the  will,  to  be  varied  so  far  from 
that  given  by  the  other  witnesses,  as  this  testimony  necessarily 
varies  it ;  that  is  to  say,  let  us  take  it  that  he  could  and  did  dis- 
tinguish one  from  another  of  his  family,  that  he  could  and  did 
speak  and  articulate  some  words  and  ask  some  questions,  such 
as  are  stated,  so  that  those  around  him  could  understand  him  ; 
and  in  what  situation  still  do  we  contemplate  him  ?  The  powers 
of  vision  and  articulation  are  mere  organic  powers ;  they  are 
wholly  distinct  from  the  mind,  and  unless  it  could  be  shown  that 
the  images  presented  by  the  one  were  justly  received  and  com- 

*664 


:>S<,rni.]         SEPTEMBER  TKKM,  1819.  779 


Den  r.  Vane  I  eve. 


pared  by  the  intellectual  faculty,  and  that  the  words  uttered  by 
the  other  were  expressive  of  the  result  of  such  comparison,  they 
are  no  proof  of  sanity.  Does  the  mere  power  of  distinguishing 
persons,  does  the  mere  power  of  uttering  indistinct  and  inarticu- 
late sounds  constitute  or  at  all  prove  a  testamentary  capacity  ? 
Is  every  man  capable  of  making  a  will  ?  Can  every  man  be 
presumed  to  be  of  sound  mind  and  memory  who  can  do  this  ? 
Certainly  idiots,  lunatics  and  madmen  can  do  it ;  persons  in  the 
raging  of  a  fever,  in  the  last  stages  of  lingering  disease,  can  do- 
all  this,  when  the  mind  can  neither  recollect,  compare  nor 
judge;  nay,  may  we  not  say,  with  truth,  that  until  death,  by  his. 
near  approach,  has  closed  the  eyes  and  sealed  the  lips,  every  one 
can  do  this ;  and  yet,  every  one  is  not  of  sound  and  disposing? 
mind  and  memory.  The  possession  of  these  powers,  then, 
af  *ford  no  argument  against  the  conclusion  which  so  irresistibly 
forces  itself  upon  us  from  the  whole  course  of  the  testimony. 

But  the  situation  of  the  deceased  at  the  time  of  the  signing; 
of  this  paper  is  not  so  favorable  as  even  this  would  make  it,  for 
on  that  morning  he  has  become  worse,  his  daughter-in-law  is 
alarmed,  she  thinks  him  greatly  altered  and  near  his  end,  she 
calls  in  neighbors,  he  is  in  a  clammy  sweat,  his  hands  and  feet 
are  cold,  he  utters  not  a  word  in  the  opinion  of  the  family,  the 
hand  of  death  is  upon  him. 

In  this  situation  and  at  this  time,  and  not  till  this  time,  the 
grand  discovery  is  made ;  the  will  is  lost ;  the  rough  draft  is- 
produced ;  the  execution  of  it  as  a  will  proceeds.  What  part 
does  the  deceased  bear  in  the  transaction  ?  Does  he  inquire  for 
the  old  will  to  know  whether  it  is  safe ;  does  he  call  for  this 
draft  to  be  executed  in  its  place,  or,  when  produced,  does  he  de- 
sire it  to  be  read  to  him  to  know  its  contents  ?  Does  he  send  for 
witnesses  to  attest  the  execution  of  it,  or  intimate  to  them,  when 
they  come,  what  is  to  be  done?  Does  he  do  any  one  act  or 
thing,  or  utter  a  single  word  which  indicates  that  he  has  any 
knowledge,  himself,  of  what  is  to  be  done  ?  Not  one.  And  yet 
it  is  said  he  can  speak.  Well,  let  us  hear  him.  It  is  announced 
to  him  that  the  will  is  lost ;  he  says  "  Who,  who."  The  rough 
draft  is  read  ;  he  is  asked  if  he  understands  it  well ;  he  says. 

*665 


780  XEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


"  Yes,  well."  He  is  asked  whether  it  is  a  copy  of  his  old  will  • 
he  says  "  Yes ;"  whether  he  will  sign  it ;  he  says  "  Yes."  He 
is  raised  in  the  bed,  the  pen  is  put  into  his  left  hand,  he  is  asked 
whether  Mr.  Phares  shall  steady  it ;  he  says  "  Yes."  Mr.  Phares 
takes  his  hand,  the  name  is  written,  manifestly,  by  Mr.  Phares 
himself  as  the  agent,  for  no  man  in  that  weak  condition,  with 
his  left  hand,  could  write  as  that  is  written  ;  he  is  told  he  must 
put  his  hand  upon  it  and  acknowledge  it  to  be  his  last  will  and 
testament ;  with  some  help  he  extends  his  left  hand,  which  is  laid 
upon  the  paper,  and  being  asked  whether  it  is  his  last  will  and 
testament,  he  says  "Yes."  According  to  Mr.  Phares  he  says 
"  Last  will  and  testament."  According  to  Mrs.  Phares  and  ac- 
cording to  Johnson,  who  seems  to  be  a  more  thorough-going  wit- 
ness, and  none  of  your  monosyllabic  fellows,  he  says  "  I  acknowl- 
edge this  to  be  my  last  will  and  testament."  He  then  takes  the 
hand  of  Mr.  Phares  and  silently  presses  it ;  he  utters  not  a  word ; 
he  is  laid  upon  his  pillow  ;  he  never  speaks  again,  but  in  a  few 
days  expires. 

*This  is  the  substance  of  the  testimony  as  to  the  fact  upon 
this  point,  comprising  every  material  part  of  it,  and  presenting 
it  in  its  simplest  form,  so  far  as  I  am  capable  of  that  office. 

The  subscribing  witnesses,  it  is  true,  on  the  trial,  testify  in 
the  most  full  and  unequivocal  terms  that  they  believe  the  deceased, 
at  the  time  of  the  transaction,  to  have  been  in  the  possession  of 
his  reasonable  faculties,  and  to  have  understood  very  well  every- 
thing that  was  proposed  to  him  touching  the  will.  Two  of 
them,  however — Mr.  Phares  and  Johnson — did  not  so  express 
themselves  immediately,  that  is  to  say,  a  day  or  two  after  the 
transaction,  but  they  expressed  directly  the  contrary ;  they  de- 
clared within  a  few  days  after,  at  sundry  times  and  places  and  to 
.sundry  persons,  that  they  did  not  think  him  capable  of  making 
a  will,  and  that  the  will  could  not  stand,  or  words  to  that  effect. 
This  contradiction,  however,  does  not  necessarily  imply  the 
smallest  degree  of  turpitude  or  dereliction  of  the  truth  on  their 
part.  Facts  and  circumstances  and  impressions  in  which  we 
are  not  interested  soon  become  obliterated  from  the  memory.  In 
the  situation  of  Mr.  Phares,  who  was  himself  a  dying  man,  who 

*666 


2  SOUTH.]    ~  SEPTEMBER  TERM,  1819.  781 


Den  r.  Vancleve. 


had  concerns  of  infinite  moment  to  occupy  every  power  of  the 
soul,  this  was  especially  to  be  expected.  And  as  to  Johnson,  he 
was  a  wayfaring  man,  a  total  stranger  to  all  the  parties  and  all 
their  concerns,  called  in  as  a  witness  merely  to  fulfill  the  requi- 
sitions of  the  law ;  there  can,  therefore,  be  no  great  claim  upon 
his  memory  further  than  merely  to  attest  his  signature,  and  cer- 
tainly there  can  be  no  great  reliance  upon  his  opinion  as  to  the 
mental  capacity  of  the  deceased,  whom  he  had  before  never  seen, 
of  whom  he  had  never  heard,  and  in  whose  chamber  he  then  was 
but  during  the  few  minutes  occupied  by  this  transaction.  This 
belief,  then,  which  these  men  express,  being  an  after-belief, 
wrought  up  long  since,  and  not  the  immediate  impression,  not 
the  deduction  from  facts  at  the  time,  however  honestly  declared 
now,  can  have  but  little  weight  in  the  scales  by  which  truth  and 
justice  are  weighed. 

The  whole,  then,  as  matter  of  opinion,  seems  to  rest  pretty 
much  upon  the  testimony  of  Mrs.  Phares,  the  other  subscribing 
witness.  She  is  an  old  lady  of  very  respectable  character ;  her 
integrity  and  truth  are  not  to  be  doubted.  She  was,  on  the 
morning  of  the  transaction,  called  in  by  the  defendant's  wife, 
who  told  *her  she  thought  the  deceased  was  greatly  altered,  and 
near  his  end,  and  that  she  did  not  like  to  be  alone  with  him. 
She  went  in  and  found  him  lying  as  if  asleep,  and  his  extremi- 
ties cold  ;  he  took  no  notice  of  her  entrance,  nor  did  he  speak  to 
her  nor  she  to  him.  Soon  after  this  (about  half  an  hour,  as  nearly 
a.s  I  could  recollect),  in  the  presence  of  herself,  her  husband,  and 
Johnson,  the  defendant  announces  to  him  that  the  will  is  lost, 
upon  which  he  seemed  to  rouse  up  as  from  sleep,  and  then  the 
execution  of  this  paper  proceeds  as  before  stated  ;  and  from  these 
facts  and  circumstances  she  formed  the  opinion  which  she  now 
expresses.  Now,  although  it  is  certainly  not  impossible  that  the 
deceased  may,  by  omnipotent  power,  have  been  raised  for  a  mo- 
ment, as  it  were,  for  this  very  purpose,  yet  that  the  opinion  of 
this  old  lady,  founded  upon  these  facts,  at  the  same  time  so  dif- 
ferently construed  by  the  other  witnesses,  however  satisfactory  to 
her  own  mind  that  opinion  may  be,  I  say  that  this  opinion  thus 

*667 


782  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


formed,  should  be  received  as  conclusive  evidence  of  so  wonder- 
ful an  interposition,  can  hardly  be  admitted. 

I  shall  proceed  no  further ;  I  shall  make  no  further  comment. 
If  I  have  rightly  comprehended  the  evidence,  if  I  have  rightly 
stated  the  case,  they  speak  for  themselves. 

If  the  jury  have  placed  their  verdict  upon  the  sanity  of  the 
testator,  which  is  the  only  real  question  in  the  case,  they  have,  in 
my  opinion,  found  a  verdict  contrary  to  the  great  weight  of  the 
evidence  ;  if  they  have  placed  it  either  upon  the  will  of  1814,  or 
upon  the  previous  intentions  of  the  testator,  they  have  found  a 
verdict  contrary  to  law. 

After  a  trial  so  laborious — so  expensive — before  a  jury  so  up- 
right, so  intelligent,  so  discerning,  selected  for  the  very  purpose,  it 
is  with  great  reluctance  as  well  as  with  great  diffidence  that  I  have 
brought  myself  to  this  conclusion.  But  yet,  upon  the  most  care- 
ful review  of  the  whole  case,  I  am  constrained  to  say  that  I  think 
the  court  was  mistaken  in  the  admission  of  evidence ;  that  I  my- 
self was  both  mistaken  and  deficient  in  not  giving  the  whole 
properly  in  charge  to  the  jury,  and  that  the  jury  was  mistaken, 
either  as  to  the  construction  of  the  testimony  or  the  point  upon 
which  they  placed  their  verdict.  And  for  these  causes,  in  my 
judgment — 

The  rule  for  setting  aside  the  verdict  must  be  made  absolute. 

*ROSSELL,,  J. 

The  plaintiff  in  this  case  applies  for  a  new  trial — 1.  Because 
the  court  admitted  unlawful  testimony,  viz.,  the  repeated  decla- 
rations of  Benjamin  Vancleve,  the  testator,  from  1809  to  1814, 
respecting  his  original  intention  to  leave  the  premises  in  question 
to  his  son,  the  present  defendant,  and  that  by  two  wills  of  the 
above  dates,  thereby  giving  parol  testimony  of  their  contents 
without  accounting  for  the  non-production  of  the  said  wills. 

2.  The  court  refused  to  permit  a  witness  on  the  part  of  the 
defendant  to  be  examined  touching  her  knowledge  of  the  nature 
and  obligation  of  an  oath,  although  she  was  only  sixteen  years 
of  age,  bound  by  indenture  to  the  defendant,  by  the  overseers  of 

*668 


2  SOUTH.]  SEPTEMBER  TERM,  1819.  783 


Den  v.  V  and  eve. 


the  poor,  and  had  never,  as  the  plaintiff  alleges,  been  sworn  as  a 
witness. 

3.  The  verdict  was  against  the  charge  of  the  court. 

4.  The  verdict  was  against  the  evidence  given  in  the  cause. 
The  first  two  reasons  given  by  the  plaintiff  I  have,  from  their 

intimate  connection,  included  in  one,  and  shall  observe  that  as 
the  defendant  did  not  claim  the  premises  in  question  under  either 
of  the  wills  of  1809  or  1814,  but  under  the  one  given  in  evidence 
of  1817,  and  as  the  testimony  relating  the  different  conversations 
of  old  Mr.  Vancleve  neither  went  to  establish  or  cancel  either  of 
the  first-mentioned  wills,  I  cannot  perceive  any  legal  objections 
to  the  evidence.  The  will  of  1817,  if  proved  in  due  form  of 
law,  was,  after  his  decease,  a  complete  revocation  of  all  the  clauses 
and  provisions  of  any  previous  will  or  wills,  and  there  could  not, 
then,  be  any  obligation  on  the  defendant  to  account  for  their  non- 
production  at  the  trial  in  any  other  mode  than  by  producing  the 
last  will  of  the  testator,  by  which,  in  legal  contemplation,  they 
were  canceled  or  destroyed.  It  was  urged,  on  the  argument  of 
the  present  question,  that  this  testimony  was  irrelevant  to  th« 
point  in  issue.  I  cannot  view  it  in  this  light.  The  true  ques- 
tion before  the  court  was  the  sanity  or  insanity  of  the  testator. 
After  the  subscribing  witnesses  to  the  will  had  fully  proved  its 
execution  in  the  manner  established  by  law,  the  plaintiffs,  to 
prove  the  incompetency  of  the  testator,  gave  in  evidence  the 
words,  behavior,  sickness,  and  almost  infant  imbecility  of  mind 
and  body  of  the  testator,  not  only  immediately  before  and  after 
the  execution  of  the  will,  before  the  court,  but  for  years  previous 
to  that  time,  together  with  many  circumstances  and  observations 
*calculated  to  induce  the  court  and  jury  to  believe  that  the  testa- 
tor was  treated  unkindly  by  the  defendant,  was  afraid  of  him, 
and  under  his  control,  by  reason  of  which  the  present  will  was 
fraudulently  imposed  on  him  for  the  purpose  of  getting  the  real 
estate  of  his  father  for  his  own  benefit,  to  the  exclusion  of  the 
other  heirs-at-law.  To  rebut  and  overcome  the  force  of  these 
strong  charges  was  not  only  the  legal  right  of  the  defendant,  if 
in  his  power  so  to  do,  but  a  necessary  and  important  duty.  One 
of  the  great  distinguishing  marks  of  insanity  is  the  total  change 

*669 


784  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


of  mind,  feelings,  affections  and  inclinations  of  the  afflicted  object. 
Was  it  not  competent,  then,  to  show  that  this  strong  trait  of  in- 
sanity could  not  be  fastened  on  the  testator  ?  and  could  that  be 
done  more  effectually  than  by  showing  that  the  will  before  the  court 
was  not  an  imposition  on  the  testator,  causing  him  to  alter  the 
disposition  of  his  estate  ?  But,  on  the  contrary,  that  for  many 
years,  when  no  charge  of  any  imbecility  of  mind  or  body  could  at- 
tach to  him,  he  had  determined  to  dispose  of  his  estate  in  the 
manner  set  forth  in  this  will ;  that  he  had  previously  declared 
this  intention  from  time  to  time  to  his  friends ;  nor  did  this  long- 
cherished  determination  leave  him  at  the  close  of  life. 

But  if  it  is  said  the  mind  of  the  testator  was  not,  correctly 
speaking,  so  much  deranged  as  lost,  by  the  almost  total  extinc- 
tion of  the  animal  functions  of  the  body,  and  could  not  act  in  the 
disposition  of  his  estate,  agreeably  to  that  part  of  the  charge  of 
the  chief-justice  respecting  the  terms  sound  of  mind,  I  would 
observe  that  I  could  by  no  means  concur  with  the  chief-justice  in 
his  exposition  of  the  term  sound,  as  applied  to  the  mind  of  the 
testator — whole,  unbroken,  unchanged,  by  disease,  age  or  infirm- 
ity. Few,  indeed,  would  be  the  wills  confirmed  if  this  is  correct. 
Mind  and  body  make  the  man ;  the  union  of  these  is  so  closely 
linked  that  one  cannot  suffer  materially  without  affecting  the 
other.  Pain,  sickness,  debility  of  body,  from  age  or  infirmity, 
would,  according  to  its  violence  or  duration,  in  a  greater  or  less 
degree,  break  in  upon,  weaken  or  derange  the  mind,  and  render 
it  incapable  of  exercising  its  full  powers,  as  in  time  of  perfect 
health.  Yet,  I  believe,  none  have  ventured  to  pronounce  that 
extreme  illness  incapacitates  a  testator,  or  that  old  age,  when 
memory  was  impaired  and  judgment  weakened,  rendered  him  in- 
capable of  disposing  of  his  property.  Of  sound  and  disposing 
mind  and  memory  is  the  language  used.  The  sentence  must  be 
*taken  together,  not  disjointed,  and  sound  explained  in  its  literal, 
distinct  and  separate  meaning,  unconnected  with  the  subject-mat- 
ter to  which  it  necessarily  and  evidently  refers.  That  this  is  the 
universal  rule  is  manifest  from  almost  all  the  authorities  con- 
tained in  our  books.  Thus  taken  in  connection  it  means  that 
the  testator,  at  the  time  of  executing  his  will,  had  that  soundness 

*670 


2  SOUTH.]         SEPTKMIJKIi  TERM,  1819.  785 


Den  e.  Vancleve. 


of  mind  and  memory  enabling  him  to  understand  the  nature  of 
the  instrument  he  signed  and  sealed,  the  relative  situation  of 
his  family  and  connections,  the  general  extent  of  the  property  dis- 
posed of,  and  that  it  was  so  disposed  of  as  was  agreeable  to  his 
desire.  In  the  present  case,  however  debilitated  and  reduced  in 
mind  and  body  old  Mr.  Vancleve  might  have  been  when  he 
executed  the  will  in  question,  three  witnesses  have  solemnly 
sworn  that  he  was  in  possession  of  this  necessary  soundness  of 
mind  and  memory — two  of  them  his  near  neighbors,  in  the  habits 
of  intimate  acquaintance  and  frequent  communication  with  him 
in  sickness  and  in  health,  and  beyond  even  an  expressed  doubt 
capable  of  fully  understanding  the  nature  of  the  oath  administered 
to  them,  and  without  a  whispered  suspicion  of  the  integrity  of 
their  hearts  or  characters.  This  testimony  was  also  corroborated 
by  that  of  several  others,  and  the  verdict  of  the  jury  has  demon- 
strated that  they  believed  them. 

3.  The  court  refused  to  suffer  certain  questions  to  be  put  to  u 
witness  respecting  her  knowledge  of  the  nature  and  obligation  of 
an  oath. 

As  to  this  reason,  suppose  the  court  in  an  error,  I  see  but  little 
in  it.  The  testimony  of  this  witness  had  but  little,  if  any,  bear- 
ing on  the  point  in  issue.  It  was  confined  to  some  collateral 
matter  and  declaredly  of  no  importance,  and  it  would  be  as  novel 
as  it  would  be  a  hard  case,  on  the  part  of  the  defendant  in  eject- 
ment, to  deprive  him  of  the  benefit  of  the  verdict  of  a  struck 
jury,  so  laboriously  obtained  at  bar,  for  a  reason  as  slight  as 
this. 

4  and  5.  The  verdict  against  the  charge  of  the  court  and 
against  evidence.  The  first  of  these  does  not  appear  to  be 
founded  in  fact.  The  chief-justice,  in  charging  the  jury,  gave 
an  explanation  of  the  necessary  soundness  of  mind  of  a  testator,, 
to  enable  him  legally  to  dispose  of  his  estate,  and  left  it  to  tho- 
jury,  on  the  whole  evidence,  to  say  whether  this  will  was  exe- 
cuted by  Benjamin  Vancleve  when  in  possession  of  that  im- 
portant qualification  of  mind,  or  not.  In  the  exercise  of  their 
constitutional  pow*ers  they  have  passed  their  verdict  on  this 
question.  And,  in  a  case  like  the  present,  I  am  unwilling  to 
*671  50 


786  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


disturb  that  verdict  and  change  the  situation  of  the  parties.  As 
evidence  was  given  by  both  parties  of  the  state  of  the  testator's 
mind,  at  and  about  the  time  of  executing  the  will,  it  cannot  be 
correctly  called  a  verdict  against  evidence,  as  in  the  fourth  reason. 
I  am,  therefore,  on  the  whole  case,  of  opinion  that  the  plaintiff 
should  take  nothing  by  his  motion. 

SOUTHARD,  J. 

In  the  investigation  which  I  have  given  to  this  motion,  and 
the  result  at  which  I  have  arrived,  I  have  not  been  governed  by 
the  objections  arising  from  the  nature  of  the  cause  and  the  place 
of  trial,  which  were  so  strongly  urged  by  the  counsel  for  the 
defendant.  That  it  was  a  trial  at  bar,  in  an  ejectment,  where 
the  questions  before  the  jury  savored  much  of  a  criminal  charge, 
and  where  the  verdict  was  for  the  defendant,  are  circumstances  of 
weight,  and  have  received  the  countenance  of  other  courts,  but 
do  not,  with  me,  afford  conclusive  reasons  why  a  new  trial  should 
be  refused.  In  a  case  where  these  circumstances  were  united  it 
should  be  a  clear  violation  of  law  and  justice  which  should  in- 
sure the  interference  of  the  court.  Yet,  if  such  violation  appear, 
we  have  the  power  and  are  bound  to  repair  the  wrong. 

Before  I  attempt  an  examination  of  the  reasons  filed  in  sup- 
port of  this  motion,  I  think  it  proper  to  admit,  with  the  counsel 
for  the  plaintiff,  the  high  importance  of  the  power  of  granting 
new  trials.  It  is  a  power  necessary  to  the  very  existence  of  the 
trial  by  jury.  But  we  must  also  remember  that  it  is  only  valu- 
able when  cautiously  exercised.  I  also  concede  that  the  title  of 
an  heir-at-law  is  not  to  be  defeated  by  conjecture  or  doubt,  but 
by  express  and  intelligible  devise  alone ;  (a)  that  a  will  executed 
with  the  statutory  formalities  must  be  produced ;  that  the  testa- 
mentary capacity  must  be  well  established,  especially  where  pro- 
bate has  not  been  granted ;  and  that  intentions  not  executed, 
however  frequently  declared,  will  not  avail.  These  are  prin- 
ciples about  which  there  ought  to  have  been  no  discussion; 

(a)  Den,  Brown  v.  Little,  Coxe  152. 

*672 


SOUTH.]          SEPTEMBER  TERM,  1819.  787 


Den  v.  Vancleve. 


principles  which  will  not  be  violated  in  the  decision  of  this 
motion. 

The  first  reason  rests  upon  the  refusal  of  the  court  to  interro- 
gate Abigail  Coulter,  before  she  was  sworn,  upon  her  know* ledge 
respecting  God,  a  future  state,  the  nature  and  consequence  of 
*n  oath,  and  her  having  before  been  sworn  in  court. 

When  she  was  offered  as  a  witness  it  appeared  that  she  was 
between  sixteen  and  seventeen  years  old ;  that  she  had  lived  a 
considerable  time  as  a  bound  servant  in  a  religious  neighborhood 
and  family ;  and  that  she  had  the  appearance  of  ordinary  intelli- 
gence. The  court,  therefore,  declined  to  interrogate  her,  and  I 
think  rightly.  Persons,  after  the  age  of  fourteen,  are,  prima 
Jade,  competent  witnesses.  An  inquiry  into  the  extent  of  their 
capacity  and  knowledge  is  matter  of  discretion  in  the  court,  and 
ought  not  to  be  made  upon  the  mere  suggestion  of  a  party  who 
may  seek  the  gratification  of  unfounded  suspicion,  or  desire  to 
throw  contempt  and  imputation  on  a  witness  who  is  feared. 
Some  good  reason  which  renders  the  capacity  or  knowledge 
questionable  should  always  be  required.  In  the  present  case  the 
plaintiff  doubtless  sought  what  he  considered  a  proper  protec- 
tion to  himself,  but  he  offered  no  fact  from  which  a  well-founded 
doubt  of  the  capacity  could  arise.  This  being  so,  I  think  now, 
as  I  thought  then,  that  no  principle  of  fairness  or  law  required 
the  court  to  interrogate  her. 

Besides,  if  the  court  were  decidedly  wrong,  the  verdict  should 
not  be  disturbed.  It  afterwards  appeared  satisfactorily  that  she 
possessed  all  the  information  requisite  to  justify  her  admission. 
And,  moreover,  her  testimony  was  such  as  could  not  have  gov- 
erned the  verdict.  It  must  have  been  the  same  without  it  as  it 
was  with  it. 

2.  The  verdict  was  contrary  to  the  charge  of  the  court.  I 
was  not  in  court  when  the  charge  was  delivered,  and  have  had 
no  such  report  of  it  as  to  enable  me  to  decide  correctly  upon 
this  reason.  The  charge  has  been  represented  as  being  hypo- 
thetical, so  far  as  related  to  the  facts — supposing  the  jury  to  find 
•certain  facts  and  stating  the  law  as  applicable  to  such  finding. 
If  this  be  so,  we  must  determine  the  existence  of  the  facts  be- 

*672 


788  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


fore  we  can  say  that  the  verdict  was  contrary  to  the  charge.  We- 
rnust  determine  where  the  weight  of  evidence  lies ;  and  this  we- 
shall  be  called  on  to  consider  under  another  reason. 

3.  The  court  admitted  unlawful  evidence,  viz.,  the  declara- 
tions of  the  testator  and  proof  of  the  contents  of  certain  wills 
without  producing  them. 

A  correct  understanding  of  this  reason  can  only  be  obtained' 
*by  reviewing  the  cause,  so  far  as  it  had  progressed  when  the 
question  respecting  the  admissibility  of  this  evidence  arose. 

The  plaintiffs  claimed  title  as  the  children  and  heirs  of  B.  Van- 
cleve, and  having  proved  that  they  were  so,  rested.  The  de- 
fendant, who  was  also  a  son  and  heir  of  B.  Vancleve,  then 
produced  a  paper  purporting  to  be  a  will  of  said  Vancleve,, 
which,  among  other  things,  devised  the  premises  in  question  to* 
the  defendant.  The  testamentary  witnesses  were  all  called  and 
unequivocally  swore  to  the  execution  of  the  will  and  the  sanity 
of  the  testator  at  the  time  of  executing  it.  It  was  then  read  to 
the  jury  as  a  will  proved  with  legal  formality.  After  this  the 
plaintiffs  opened  to  the  court  and  jury  that  they  would  prove- 
that  the  testator  had  long  lived  with  the  defendant  at  his  table,, 
under  his  control,  ill  treated  by  and  in  fear  of  him  ;  that  he  had 
long  been,  and  at  the  execution  of  the  pretended  will  was  in  a 
state  of  second  childhood,  totally  incapable  of  managing  his 
property,  and  destitute  altogether  of  the  legal  testamentary  ca- 
pacity ;  and  that,  under  these  circumstances,  the  defendant  had 
fraudulently  imposed  upon  him  and  induced  him  to  make  the 
will,  which  was  the  mere  contrivance  of  the  defendant,  and  not 
the  dictate  of  the  testator's  sound  mind.  In  support  of  this 
opening  they  called  many  witnesses  who  detailed  a  vast  variety 
of  facts  and  opinions  tending  to  substantiate  it,  and,  as  the 
plaintiffs  did  then  and  do  still  insist,  completely  substantiating 
every  part  of  it. 

After  the  plaintiffs  had  closed  the  evidence  in  support  of  this- 
view  of  the  case,  the  defendant  proceeded  to  countervail  it  by 
evidence  of  a  like  character ;  and  also  offered  to  prove  that  for 
many  years  before  his  death  the  testator  had  declared  his  inten- 
tion of  giving  this  land  to  the  defendant,  and  that  he  had  exe- 

*673 


"2  SOUTH.]  SEPTEMBER  TERM,  1819.  789 


Den  r.  Vancleve. 


•cuted  two  previous  wills  to  carry  this  intention  into  effect.  Tina 
evidence  was  objected  to.  but  admitted ;  and  this  admission  gives 
rise  to  the  present  reason.  And,  before  a  more  particular  exami- 
nation of  it,  it  will  be  proper  to  remove  out  of  our  way  certain 
ideas  and  difficulties  which  do  not  properly  apply  to  it,  but  which 
were  interposed  in  the  course  of  the  argument. 

1.  This  evidence  was  not  offered  as  proof  of  a  will  of  Benja- 
min Vancleve  in  order  to  carry  the  lands,  nor   to  supply  the 
^absence  of  a  written  will.     The   law   is   satisfied  with  nothing 
•short  of  a  written  will,  executed  with  all  the  formalities  pre- 
-scribed  in  *the  statute.     No  parol  evidence  can  possibly  supply 
its  place.     Nor  did  the  court  understand  the  defendant  aq  offer- 
ing it  with  that  view.     He  had  presented  a  written  will  in  legal 
and  competent  form,  and  executed  with  due  solemnities,  provided 
the  testator  possessed  a  disposing  mind.     It  was  in  reference  to 
that  mind  alone,  and  as  rebutting  the  plaintiffs'  allegations  and 
.proofs,  that  this  evidence  was  offered  and  considered  competent. 

2.  It  was  not  to  explain  a  written  will.     The  will  itself  re- 
quired no  explanation ;  the  evidence  was  calculated   to  afford 
none. 

3.  It  was  not  designed  to  show  that  less  than  the  strict  testa- 
mentary capacity  was  sufficient  to  sustain  this  will,  but  to  prove 
that  he  really  did  possess  that  capacity,  and  the  question  is,  Was 
it  competent  for  this  purpose  under  the  circumstances  in  which 
it  was  offered  ? 

The  technical  issue  was  guilty  or  not  guilty.  The  substantial 
issue  was  will  or  no  will.  The  point  on  which  this  issue  rested 
was  the  existence  of  the  testamentary  capacity.  To  this  point 
lx>th  parties  necessarily  devoted  their  attention.  Is  it,  then, 
oompetent  for  a  party  who  has  exhibited  a  written  will  and 
proved  its  formal  execution,  in  support  of  the  sanity  of  the  tes- 
tator, which  is  disputed,  not  only  at  the  time  of  execution  hut 
for  years  before,  and  in  denial  of  the  allegation  of  fraud  in  pro- 
•curing  it,  to  prove  the  designs  of  the  testator  while  his  intellect 
was  unquestionable — to  show  how  he  reasoned  and  what  he 
said  on  the  subject  of  the  devise?  I  think  it  is,  and  that  it  is 
one  of  the  best  modes  by  which  a  jury  can  acquire  a  proper 

*674 


790  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Vancleve. 


knowledge  of  his  capacity  and  correctly  estimate  the  charge  of 
imposition. 

It  is  here  to  be  recollected  that  this  question  arose  after  the- 
testamentary  witnesses  had  all  sworn  to  the  mechanical  execution 
of  the  will  and  the  testator's  assent  to  it.  Did  a  sound  mind 
accompany  that  assent  ?  Did  he  speak  what  he  meant  ?  Did 
he  express  the  resolution  which,  in  his  soundest  hour,  he  would 
have  pronounced  ?  How  shall  we  discover  this  ?  I  answer,  let 
us  ask  his  soundest  hour  and  most  deliberate  judgment,  if  we- 
can  find  them.  When  the  competency  of  a  man,  when  his- 
sanity,  at  a  particular  moment,  is  questioned,  what  more  conclu- 
sive mode  is  there  of  ascertaining  it  than  by  comparing  what  he- 
then  said  and  did  with  what  he  said  and  did  at  other  periods  of 
his  life  ?  If  we  find  that  he  thought  and  reasoned  and  acted  at 
that  time  as  he  had  for  years  before  thought  and  reasoned  *and 
acted,  shall  we  not  either  admit  his  sanity  at  the  moment  or  deny 
his  sanity  for  years  preceding  ?  If  he  executes  a  purpose  which 
he  had  resolved  for  a  considerable  portion  of  his  life  to  execute,, 
shall  we  not  thence  infer  that  his  intellect  remained  ? 

The  execution  of  a  will,  the  distribution  of  an  estate  among  a 
family,  is  an  act  of  a  peculiar  character.  It  is  not  the  prompt 
and  unpremeditated  effort  of  the  moment  but  the  tardy  effect  of 
long  observation  on  his  family  and  property,  on  the  claims  of 
duty  and  the  calls  of  affection.  It  is  frequently  the  result  of  thtr 
combined  reasoning  and  feelings  of  years,  often  meditated  on, 
often  resolved  and  not  unfrequently  divulged.  When,  then,  it 
is  said  that  a  testator  did  not  know  what  he  did,  is  it  not  at 
least  one  fair  answer  to  say  that  he  did  what  he  had  always  de- 
signed to  do — that  his  mind  operated  on  this  subject  as  it  had 
always  before  operated  ?  I  say  that  it  would  be  one  fair  answer. 
I  do  not  say  that  it  would  be  a  conclusive  answer,  nor  do  I  say 
that  it  is  a  kind  of  answer  altogether  free  from  suspicion,  and  not 
subject  to  be  misrepresented.  We  are  not  here  discussing  the 
weight  and  conclusiveness  but  the  competency  of  the  evidence. 

Let  us,  as  was  done  by  one  of  the  counsel  for  the  defendant, 
reverse  this  view.  Suppose  the  capacity  of  a  testator  in  ques- 
tion, and  it  is  alleged  that  he  had  been  fraudulently  imposed  on, 

*675 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  791 


Den  t.  Vancleve. 


in  a  state  so  weak  and  feeble  that  he  could  not  distinguish  be- 
tween right  and  wrong  or  distribute  his  property  discreetly,  and 
it  could  be  shown  that  the  devi.se  was  in  direct  contradiction  to 
the  dictates  of  justice,  to  the  deliberate  resolves  of  his  judgment, 
to  his  warmest  affections  and  the  bitterest  animosities  of  his 
heart,  nurtured  for  years  and  repeatedly  and  feelingly  proclaimed. 
What  would  we  say  ?  Would  we  not  infer  that  the  devise  was  not 
his ;  that  he  had  been  imposed  on ;  that  he  had  not  been  him- 
self; that  he  had  not  possessed  sufficient  mind  at  the  time  to  rec- 
ollect his  family  and  estate,  to  reason,  to  dispose  of  his  property 
with  discretion  ?  And  when  the  jury  was  called  on  to  say  whether 
he  did  possess  such  a  mind,  would  we  be  justified  in  concealing 
this  light  from  them  ?  Would  we  not  conceal  that  which,  in  the 
language  of  Blackstone,  "demonstrates,  makes  clear  and  ascertains 
the  truth  of  the  very  fact  or  point  in  issue  ?"  And  in  forming  our 
opinion  we  are  not  to  forget  that  the  legality  of  evidence  depends 
always  on  the  circumstances  in  which  it  is  offered,  and  *the  nature 
of  the  question  or  fact  to  which  it  is  to  be  applied.  When  thi.s 
is  forgotten,  technical  rules  serve  only  to  bewilder  and  confound. 

It  seems  to  me  that  the  reasoning  which  has  been  opposed  to 
the  competency  of  this  evidence  requires  too  large  an  admission 
upon  two  points.  It  seems  to  take  for  granted  that  the  testa- 
mentary witnesses  did  not  swear  to  the  truth,  and  that  the  testa- 
tor did  not  assent  to  the  execution  of  the  will,  nor,  as  they  de- 
clare, perform  the  act  of  signing  and  acknowledging. 

Now,  this  fact  having  been  sworn  to,  the  court  cannot  reject  it, 
and  the  jury  may  believe  it,  and  we  are  now  merely  to  say 
whether  the  declarations  in  question  are  calculated  and  are  proper 
to  show  that  in  performing  the  act  he  knew  what  he  did.  And 
1  cannot  hesitate  to  say  that  if  the  jury  did  believe  the  fact  of 
execution  these  declarations  were  proper  guides  in  forming  their 
estimate  of  the  portion  of  intellect  which  accompanied  it,  and 
were  not,  in  the  language  of  the  counsel,  an  ignis  faiuus  calcu- 
lated to  lead  them  into  error. 

But  it  seems  to  me,  also,  that  this  reasoning  not  only  presumes 
that  he  did  not  execute  the  will,  but  also  the  very  fact  to  be 
proved  that  he  was  in  a  state  of  mental  imbecility.  The  argu- 

*676 


792  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


ment  seems  to  be,  You  must  not  prove  what  he  would  have  done 
in  his  sound  mind,  in  order  to  make  that  valid  which  he  did  with 
an  unsound  mind. 

But  is  it  shown  that  he  had  an  unsound  mind  ?  Who  shall 
determine  this  ?  Is  it  not  the  essence  of  the  dispute  ?  And  is 
it  not  proper  to  compare  the  efforts  of  his  strength  with  this  act 
to  know  whether  they  partake  of  the  same  character  ? 

Again.  This  evidence  was  competent  as  designed  to  rebut  the 
charge  of  fraud  and  imposition,  and  this  whether  the  charge  was 
a  separate  and  distinct  allegation,  or,  as  was  argued,  an  incident 
to  and  depending  upon  the  want  of  capacity  in  the  testator.  It 
was  said,  in  opening  the  evidence,  that  the  will  was  obtained  by 
a  fraudulent  imposition  upon  the  testator's  weakness ;  that  he 
was  under  defendant's  control,  and  in  fear  of  him,  and  some  evi- 
dence was  given  designed  to  prove  it.  The  allegation  and  proof 
then  were  that  testator  was  imposed  on  and  did  not  speak  his  own 
will.  Was  it  not  a  proper  answer  that  he  did  what  for  twenty 
years  he  had  intended  to  do,  and  therefore  there  could  be  no  im- 
position ?  And  if  this  be  a  proper  answer  shall  not  the  defendant 
*be  permitted  to  prove  it  ?  and  can  it  be  proved  in  a  better  way 
than  by  the  testators's  acts  and  declarations  ?  I  am  aware  of 
none. 

Without,  therefore,  calling  in  aid  the  argument  which  was  so 
fairly  and  forcibly  pressed  by  one  of  the  defendant's  counsel,  that 
these  declarations  were  competent,  because  they  were  the  decla- 
rations of  the  ancestor  respecting  the  heirs  and  the  inheritance,  I 
feel  prepared  to  say  that  they  were  clearly  admissible  for  the  rea- 
sons which  I  have  endeavored  to  assign. 

But,  under  this  reason,  it  is  further  urged  that  the  court  erred 
in  admitting  proof  of  the  contents  of  certain  wills  without  their 
being  produced.  This  objection  was  not  pressed  nor  noticed  at 
the  trial,  and  therefore  deserves  less  countenance,  if  it  should  be 
at  all  heard.  10  Johns.  7  ;  3  Burr.  1253.  But  it  does  seem  to 
me  to  have  weight,  for  two  reasons — 1.  The  contents  of  these 
wills  were  not  shown  in  order  to  make  a  title  under  them  as  valid 
and  existing  wills.  The  defendant's  claim  showed  that  they  were 
destroyed  in  law  if  not  in  fact.  The  making  of  the  last  will, 

*677 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  793 


Den  v.  Vancleve. 


under  which  he  claimed,  put  an  end  to  them.  The  legitimate 
object  of  speaking  of  them  was  to  indicate  the  temper  and  inten- 
tions of  the  testator  as  to  his  children  and  property,  to  strengthen 
the  inference  that,  in  his  last  days,  he  recollected  and  executed 
the  purposes  of  his  past  life.  2.  The  evidence  of  these  contents 
was  not  by  any  person  who  had  seen  them  and  could  prove  their 
contents  as  lost  papers.  They  were  proved  by  the  testator's  own 
declarations,  and  thus  stand  precisely  in  the  same  situation  as  the 
evidence  which  is  considered  under  the  first  part  of  this  reason. 
Besides,  if  additional  causes  were  wanting  to  justify  this  evidence 
it  is  found  in  the  testimony  of  Castner ;  the  proof  of  affection 
between  the  testator  and  his  daughters ;  and  the  deposition  of 
Andrew  Reeder,  offered  by  the  plaintiff.  This  deposition  con- 
tains proof  of  the  existence  of  the  will  of  1814,  and  an  account 
of  its  contents,  and  seems  to  me,  therefore,  to  legalize  the  subse- 
quent evidence  of  the  defendant  respecting  them. 

4.  The  last  reason,  upon  which  much  argument  was  expended, 
is  that  the  verdict  is  against  the  weight  of  the  evidence. 

In  looking  into  this  reason  I  find  no  difficulty  arising  from 
any  difference  of  opinion  respecting  the  nature  of  the  testamen- 
tary capacity.  The  character  of  that  capacity  has,  on  former 
occasions  been  laid  down  by  this  court  (South.  454}>  and  I  feel 
no  disposition,  in  this  case,  to  weaken  the  strength  of  the  terms 
in  *which  it  was  done.  He  who  claims  lands  under  a  will  must 
show  that  the  testator  executed  it  with  due  form,  and  that  he 
possessed  a  sound  and  disposing  mind  and  memory,  a  mind  and 
memory  having  a  capacity  to  remember  and  discreetly  to  dispose 
of  his  property,  and  to  recollect,  discern  and  feel  the  relations, 
connections  and  obligations  of  family  and  blood.  The  question 
here  is,  Did  that  capacity  exist  ?  The  verdict  answers  in  the  af- 
firmative. Is  that  verdict  against  the  weight  of  the  evidence  ? 

I  shall  not  here  stop  to  give  a  detail  of  the  evidence.  It  is, 
perhaps,  to  be  regretted  that  my  apprehension  of  it  is,  in  many 
respects,  variant  from  that  expressed  by  the  chief-justice.  I  cer- 
tainly did  not  understand  the  witnesses  as  he  has  done.  But  the 
view  which  I  take  of  the  point  now  under  consideration  renders 

*678 


794  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Vancleve. 


a  full  statement  of  the  evidence  unnecessary  to  an  explanation 
of  my  opinion. 

This  question  always  presents  difficulties  to  my  mind.  The 
first  and  highest  duty  of  the  jury  is  to  weigh  the  evidence. 
This  is  its  peculiar  province,  and  one  which  will  never  be  hastily 
invaded  by  the  judge  who  regards  the  trial  by  jury  as  one  of 
the  proudest  features  in  our  juridicial  system.  It  has  been  else- 
where well  said  "  the  credibility  of  witnesses  is  the  peculium  of 
the  jury.  Take  that  away  and  what  is  there  left?"  South.  46. 
Yet,  still,  if  it  be  perfectly  clear  to  a  dispassionate  court  that  the 
jury,  through  partiality  or  prejudice,  have  grossly  disregarded 
the  evidence,  reason  and  the  authorities  require  that  the  verdict 
should  be  set  aside,  both  to  preserve  the  system  pure  and  to  ad- 
minister justice  to  the  parties.  The  difficulty  is  to  find  the  point  to 
which  the  court  ought  to  go  in  questioning  the  correctness  of  the 
jury  in  this  matter,  within  what  bounds  the  decision  of  the  jury 
shall  be  irreversible,  to  establish  that  line  quam  ultra,  citraque 
nequit  eonsistere  rectum,  so  as  not,  on  the  one  hand,  to  trespass  on 
the  rights  of  the  jury,  and,  on  the  other,  not  to  permit  injustice  to 
be  done.  The  judges  have  no  authority  nicely  to  weigh  the  evi- 
dence in  their  own  scales,  and  resolve  that  the  one  side  by  so  much 
overbalances  the  other ;  that  this  witness  was,  in  some  degree, 
more  worthy  of  credit  than  that ;  that  this  shall  be  accepted  as 
convincing  and  satisfactory,  and  that  rejected.  As  little  right 
have  the  jury  lightly  to  sport  with  the  evidence  which  the  law 
affords  and  the  credibility  of  the  witnesses. 

Where  opposing  and  contradictory  evidence  has  been  given  *I 
am  aware  of  no  safer  rule  than  to  take  that  exhibited  by  the 
party  in  whose  favor  the  verdict  is  rendered,  examine  it  by  itself, 
and  if  it  be  of  such  character  and  amount  as,  uncontradicted, 
fully,  fairly  and  completely  to  justify  the  conclusions  of  the  jury, 
then  to  let  the  verdict  stand.  The  jury  may  have  disbelieved 
the  opposing  testimony,  and  they  are  to  determine  whether  they 
will  disbelieve  it.  But  if  the  evidence  in  favor  of  the  verdict 
leaves  it  all  questionable,  and  the  opposing  evidence  is  strong  and 
clear,  the  court  ought  to  interfere  and  relieve  the  injured  party. 

In  the  case  before  us  the  defendant,  who  is  in  possession  of 

*679 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  795 


Den  v.  Vaneleve. 


the  verdict,  produced  a  will  purporting  to  be  executed  with  all 
the  legal  formalities.  In  support  of  this  will  the  three  sub- 
scribing witnesses  all  swore  that  the  testator  heard  it  read,  as- 
sented to  its  correctness  and  executed  it  as  and  for  his  last  will 
and  testament ;  and  that,  when  he  so  executed  it,  he  was  of  sound 
and  disposing  mind  and  memory,  competent  to  perform  the  act, 
and  then  gave  their  reasons  for  their  belief.  Now,  two  of  these 
witnesses  were  well  known,  of  unblemished  character  and  unim- 
peachable veracity,  and  the  third,  though  poor  and  wandering 
and  a  stranger,  I  saw  no  conclusive  reason  to  disbelieve.  Other 
witnesses  united  with  these  as  to  his  capacity,  and  detailedfacts  to 
corroborate  their  opinion. 

If  this  evidence  had  remained  uncontradicted,  neither  the  court, 
the  jury,  the  parties,  nor  the  public  would  'have  hesitated  as  to 
the  result.  If  the  jury  believed  it  I  think  their  verdict  was  right. 
And  this  without  admitting  that  they  overlooked  or  evaded  the 
law  which  determines  the  capacity  necessary  to  make  a  will.  The 
law  on  that  point,  as  the  law  always  is,  was  the  first  and  highest 
evidence  before  them,  which  they  were  bound  to  regard,  and  to 
which  their  character  ensured  attention.  It  is  certainly  very  true 
that  the  plaintiff  produced  much  evidence  calling  in  question  the 
testamentary  capacity,  but  it  was  in  hostility  with  that  of  the  de- 
fendant, and  the  jury,  not  the  court,  held  the  balance. 

Intending  in  this,  as  in  every  case,  to  avoid  encroaching  upon 
the  rights  of  the  jury,  I  carefully  abstain  from  expressing  any 
opinion  of  the  merits  of  this  cause,  but  governed  by  the  rule 
which  I  have  mentioned,  and  which  I  esteem  correct,  I  do  not 
hesitate  in  the  judgment  which  I  think  it  my  duty  to  pronounce. 
*I  discover  no  error  in  the  opinions  expressed  by  the  court.  The 
jury  possessed  much  more  than  ordinary  intelligence.  The  cause 
was  fairly  and  fully  before  them.  The  evidence  was  strongly 
contradictory.  There  was  enough,  if  believed,  to  support  the 
verdict ;  and  I  perceive,  therefore,  no  requirement  of  legal  prin- 
ciples, nor  of  justice,  demanding  a  new  trial. 

I  have  only  to  add  that  I  have  seldom  investigated  a  cause 
with  greater  anxiety  to  arrive  at  the  truth  ;  and  if  in  the  result 
which  I  have  reached  I  have  fallen  into  error,  it  has  not  been 

*680 


796  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Wilson. 


for  the  want  of  ample  aid  to  assist  my  inquiries.  The  rights 
of  the  parties  upon  the  argument  received  an  elucidation  which 
would  not  have  been  surpassed  at  any  bar. 

I  think  the  rule  to  show  cause  ought  to  be  discharged. 

Rule  discharged,  and  judgment  for  defendant. 


DEN  v.  WILSON. 

Kule  for  security  for  costs  in  ejectment  may  be  granted  after  issue  joined,  (a) 


There  were  two  ejectments  against  the  same  defendant.  In 
one  the  lessor  of  the  plaintiff  resided  out  of  the  state  of  New 
Jersey,  and  in  the  other  was  an  infant.  The  issues  were  joined 
some  terms  preceding,  and  the  causes  were  taken  down  to  the 
circuit  but  not  tried.  After  which — 

Ewing,  for  the  defendant,  had  moved  and  obtained  a  rule  that 
the  lessors  give  security  for  costs,  or  proceedings  be  stayed. 

Saxton  now  moved  to  discharge  the  rule,  because  not  applied 
for  before  issue  joined.  Pat.  364  §  &4" 

KlRKPATRICK,  C.  J. 

This  act  is  cumulative  and  does  not  restrain  the  power  before 
possessed  by  the  court.  The  settled  law  in  actions  of  ejectment 
was  to  order  costs  at  any  time,  but  not  for  delay  or  oppression. 
In  practice,  the  issue  is  always  joined  when  the  consent  rule  is 
entered  into  ;  (6)  and  it  would  be  unreasonable  in  this  action  to 
refuse  this  rule  to  a  party. 

COURT.     Let  the  rule  remain. 

(a)  See  Nix.  Dig.  7S1  \  98;  also,  State  Sank  v.  Evans,  £  Or.  298;  Mechanics 
Bank  v.  Godwin,  2  Gr.  439 ;    Cotheal  ads.  Morehouse,  1  Zab.  SS5  ;  Roumage  v. 
Insurance  Co.,  7  Hal.  95;  Scull  v.  Carhart,  3  Gr.  430;  Den  v.  Inslee,  1  Hal.  475. 

(b)  Den,  Bray  v.  Drake,  3  Hal.  305. 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  797 


Wade  v.  Scudder. 


* JONAS  WADE  v.  SMITH  SCUDDEB. 

1.  Writ  of  error. 

2.  Reversal. 

3.  Venire  de  now. 

In  case. 

This  action  was  originally  brought  in  the  common  pleas  of 
Essex  county,  where  judgment  was  rendered  for  the  plaintiff*. 
At  September  term,  1818,  the  judgment  of  the  pleas  was  affirmed 
in  this  court.  See  ante  249.  A  writ  of  error  was  brought,  the 
judgment  reversed  in  the  court  of  appeals,  and  at  this  term  the 
following  rule  was  entered  : 

It  appearing  to  this  court  that  the  record  in  this  cause  was  re- 
moved by  writ  of  error  into  the  court  of  appeals,  and  that  in  the 
term  of  May,  1819,  "it  appeared  to  the  said  court  of  appeals, 
after  hearing  the  argument  of  counsel  on  the  errors  assigned,  that 
there  was  manifest  error  in  the  courts  below,  in  that  there  was  not 
sufficient  contained  in  a  certain  letter  written  by  the  said  Smith 
Scudder  to  the  said  Jonas  Wade,  and  mentioned  in  the  record  and 
proceedings  aforesaid,  to  charge  the  said  Smith  Scudder  with  any 
more  paper  than  what  was  delivered  in  obedience  to  the  specific 
order  contained  in  the  first  part  of  said  letter :  therefore,  it  was 
ordered,  adjudged  and  determined  by  that  court  that  as  well  the 
judgment  of  the  said  court  of  common  pleas  as  that  of  the 
supreme  court  be  reversed,  and  the  record  and  proceedings  be 
remitted  to  the  supreme  court,  and  that  a  venire  de  novo  issue 
therefrom  in  said  cause."  And  it  being  suggested  to  this  court 
that  the  said  Jonas  Wade  has  died  since  the  said  judgment  in  the 
said  court  of  appeals ;  and  that  Oliver  Wade  is  executor  of  the 
last  will  and  testament  of  the  said  Jonas  Wade,  deceased.  It  is 
ordered  that  the  said  record  be  filed,  and  that  the  said  cause  pro- 
ceed in  the  name  of  Oliver  Wade,  executor  of  the  last  will  and 
testament  of  Jonas  Wade,  deceased,  against  the  said  Smith  Scud- 

*681 


798  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Wintermute  v.  Swisher. 


der,  Esq.,  one  &c. ;  and  that  a  venire  de  novo  do  issue  out  of  this 
court  for  the  trial  of  said  cause,  on  motion  of  Vanarsdale,  attor- 
ney for  the  plaintiff. 


*E.  SNEED  and  S.  W.  STEVENS,  administrators  of  G.  SNEED, 
deceased,  ads.  JAMES  W  ALLEN. 

Bail  by  administrators  on  habeas  corpus,  (a) 

This  cause  was  removed  by  habeas  corpus  from  the  common 
pleas  of  Gloucester. 

Woodruff,  for  the  plaintiff,  moved  that  the  defendant  file  bail, 
or  that  a  procedendo  be  awarded.  Pat.  364  §  86* 

Pearson.  The  defendants  are  administrators,  and  therefore 
not  bound  to  give  bail  upon  this  habeas  corpus.  The  statute 
does  not  apply  to  them. 

COURT.     Let  common  bail  be  filed. 


PETER  WINTERMUTE  v.  JACOB  SWISHER. 
On  certiorari. 

The  state  of  demand,  with  a  great  affectation  of  form  and  pre- 
cision, sets  out  the  following  case :  That  the  plaintiff  had  ob- 
tained judgment  against  Peter  Wintermute,  Jr.,  for  $44,  on  which 
an  execution  was  issued  and  delivered  on  the  llth  of  September, 
1817,  to  Aaron  Hankinson,  a  constable;  that  he  then  had  suf- 
ficient goods  and  chattels  of  which  to  make  the  money,  but  this 

(a)  Anonymous,  Penn.  *641 ;  Craig  v.  Berry,  post  852. 

*682 


2  SOUTH.]         SEPTEMBER  TERM,  1819.  799 

Searing  r.  Lum. 

defendant  did  collusively  and  fraudulently  conceal  and  keep  them 
out  of  the  power  of  the  constable,  and  forcibly  prevent  the  opera- 
tion of  law  by  taking  the  property  out  of  the  power  of  the  con- 
stable; that  about  the  1st  of  November,  1817,  the  constable  ar- 
rested said  Peter  Wintermute,  Jr.,  and  was  about  to  convey  him 
to  gaol,  when  the  defendant  promised  the  constable  if  he  would 
forbear  to  do  so  one  day,  and  he  run  away,  he,  the  defendant, 
would  pay  debt  and  costs ;  that  defendant  well  knew  he  intended 
to  run  away,  and  made  the  promise  to  cheat  the  plaintiff;  that 
he  did  run  away  and  thus  put  it  out  of  the  plaintiff's  power  to 
get  his  money,  and  that  said  plaintiff  is  injured  by  this  tram  1  of 
the  defendant  $50.  There  was  judgment  for  $49.53. 

BY  THE  COURT.     It  is  manifest,  from  the  state  of  demand, 
that  the  plaintiff  has  no  cause  of  action  against  the  defendant. 

Judgment  must  be  reversed. 


*SEARING  t>.  LUM. 

1.  Alteration  of  transcript  (a) 

2.  Action  for  deceit. 

3.  Scienter.  (b) 

On  certiorari. 

It  was  alleged  that  the  plaintiff  in  certiorari  had  received 
from  the  justice  a  transcript  upon  which  the  certiorari  was 
brought,  but  that  the  transcript  now  sent  to  the  court  differed 
materially  from  it,  whereupon  a  rule  was  granted  upon  the 
justice;  and  in  return  to  that  rule  he  certified  that  the  transcript 
first  given  was  a  true  copy  of  the  proceedings  in  said  action  at 

(a)  Ridgvxty  v.  Fairholm,  Penn.  *905 ;  AUen  v.  Joice,  S  HaL  1S5 ;  Camp  v. 
Martin,  7  Hal.  181;  Backer  v.  Van  Fleit,!  Or.  195. 

(b)  Angus  v.  Rodin,  post  815 ;  Alien  v.  Wanamaker,  S  Vr.  S70 ;  see  Mason 
v.  Evans,  Coxe  182. 

*683 


800  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Vanness  v.  Nafie. 


the  time  when  delivered  to  the  plaintiff  in  certiorari.  By  the 
last-mentioned  transcript  and  the  other  papers  it  appeared  that 
the  action  was  brought  for  a  deceit  in  the  sale  of  a  horse — or, 
rather,  in  the  exchange  of  a  yoke  of  oxen  and  $30  for  a  horse — 
and  that  the  oxen  and  $30  were  a  sound  price  for  a  sound  horse ; 
and  that  the  defendant  alleged  the  horse  to  be  sound  and  kind, 
whereas  he  was  unkind  in  harness.  In  the  progress  of  the  trial 
the  justice  refused  a  nonsuit,  and  informed  the  jury  that  it  was 
not  necessary  for  the  plaintiff  to  prove  that  the  defendant  had 
any  knowledge  of  the  unkindness  of  the  horse ;  and  that  if  he 
proved  the  honesty  of  his  intentions  it  would  be  considered  as 
some  reason  for  mitigating  damages,  but  as  no  justification. 

W.  Halstead,  for  plaintiff. 

BY  THE  COUET.  The  justice  has  acted  very  incorrectly  in 
altering  his  record  after  it  was  made  up  and  a  copy  given  to  the 
party.  Such  conduct  deserves  reprehension  and  punishment. 
He  also  erred  in  his  exposition  of  the  law,  and  his  judgment 
must,  therefore,  be  reversed. 


CORNELIUS  H.  VANNESS  v.  ELIZABETH  NAFIE. 

Plea  of  title  to  land  in  trover,  (a) 

• 

On  certiorari. 

The  state  of  demand  filed  by  Nafie,  in  the  court  below,  is  in 
technical  form  for  the  trover  and  conversion  on  the  21st  of  Jan- 
uary, 1819,  of  two  hundred  and  fifty  chestnut  and  butternut 
rails  and  one  load  of  firewood,  to  her  damage  $100.  *At  the 
proper  time  the  defendant  pleaded  title  to  the  land  from  which 

(a)    Van  Mater  v.  Real,  Penn.*4?%  ;   Wilson  v.  Clark,  1  South.  379. 

*684 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  801 


Corse  v.  Colfax. 


the  rails  and  wood  were  taken  and  tendered  to  the  justice  a 
bond  executed  according  to  the  statute ;  but  the  justice  refased 
to  receive  it,  "  as  he  could  not  conceive  that  the  title  of  land 
could  in  any  way  come  in  question,  as  the  controversy  respected 
a  quantity  of  rails,  which,  in  his  opinion,  were  movable  prop- 
erty, and  not  attached  to  the  freehold."  The  verdict  and  judg- 
ment were  for  $9.75. 

Hakey,  for  plaintiff  in  certiorari,  relied  upon  several  reasons, 
but  it  is  necessary  to  notice  only  the  rejection  of  the  plea  and 
bond  by  the  justice. 

Dad,  for  defendant. 

BY  THE  COURT.  The  justice  ought  to  have  received  the 
plea  and  bond.  The  title  to  land  may  come  in  question  in 
an  action  of  trover  for  rails  and  wood  as  well  as  in  trespass. 
The  form  of  the  action  is  nothing.  The  statute  constituting 
courts  for  the  trial  of  small  causes,  section  33,  says,  "  that  when, 
in  any  action  to  be  brought  by  virtue  of  this  act,  the  defendant 
shall,  as  a  justification,  plead  title  to  any  real  estate,  in  himself 
or  another  under  whom  he  acted  or  entered,  such  defendant  shall 
commit  the  said  plea  to  writing,  and,  having  signed  the  same, 
shall  deliver  such  plea  to  said  justice,  who  shall  countersign  and 
deliver  it  to  the  plaintiff"  <fcc.  This  judgment  must,  therefore, 
be  reversed. 


ISRAEL  CORSE  v.  WILLIAM  COLFAX. 

Common  bail  ordered  where  defendant  agreed  to  have  appearance  entered,  (a) 


A  summons  was  issued  returnable  to  September,  1819.    Upon 

(o)  See  Sexton  v.  New  Jersey  Ae.  Co.,  9  Hal.  169;  Skillman  ads.  Coolbavgk, 
4  Hoi.  £46  ;  Sailer  ads.  State,  1  Harr.  S58,  per  Ryeraon,  J. ;  Linn  v.  W heeler,  6 
C.  E.  Or.  Ml. 

51 


802  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Lewis  v.  Little. 


the  back  of  it  was  endorsed  these  words :    "  I  appear  to  this 

writ  and  pray  that  my  appearance  may  be  entered  accordingly. 

"June  14th,  1819.  WILLIAM  COLFAX." 

Vanarsdale  moved  that  an  appearance  be  directed  to  be  entered 
by  the  clerk. 

KlRKPATRICK,  C.  J. 

Nothing  but  bail  can  put  the  defendant  in  court.  The  en- 
dorsement is  an  authority  to  enter  common  bail.  This  is  some- 
times not  done,  but  the  court  always  permits  it  to  be  done. 
Let  common  bail  be  filed. 


*JOHN  P.  LEWIS  &c.  v.  WILLIAM  LITTLE. 

Suit  against  the  sureties  of  a  constable  must  be  brought  on  the  bond  in  the 
name  of  the  inhabitants  of  the  township,  (a) 


On  certiorari. 

The  plaintiff's  demand,  in  substance,  sets  forth  that  on  the  2d 
of  February,  1816,  he  put  into  the  hands  of  Benjamin  R.  Wol- 
cott,  then  a  constable,  an  execution  against  Joseph  Vunk  for  $36 
debt  and  seventy-five  cents  costs,  which  had  been  issued  by  Halsted 
Wainwright,  Esq. ;  that  Wolcott  received  the  money,  but  did 
not  pay  it  over  to  the  plaintiff;  that  he  had  left  the  state  ;  that 
Lewis,  the  defendant,  had  placed  himself  in  his  situation  by 
being  his  security  for  his  performance  of  his  office  as  constable, 
and  had  agreed  to  have  the  matter  settled  before  the  justice. 
The  whole  amount  of  principal  and  interest  claimed  was  $43.56. 

The  transcript  stated  that  "  the  parties  appeared  and  agreed  to 
come  to  trial  by  consent,  without  any  process  being  issued." 
There  was  verdict  and  judgment  for  the  plaintiff. 

(a)  Boyd  v.  Rose,  1  South.  280. 

*685 


2  SOUTH.]          SEPTEMBER  TERM,  1819.  803 


Montfort  r.  Vanarsdalen. 


It  was  objected  by  Lloyd,  for  plaintiff  in  certiarari,  that  this 
was  an  action  against  one  of  the  securities  of  a  constable  for  neg- 
lecting to  perform  his  duties,  and  that  such  action  could  only 
be  brought  on  the  bond  given  by  the  constable  to  the  town- 
ship <fec. 

To  this  it  was  answered  by  Wall,  for  defendant  in  certiorari, 
that  here  the  defendant  below,  the  security,  had  consented  to  the 
bringing  of  the  action. 

KlRKPATRICK,  C.  J. 

This  is  an  action  against  Lewis  as  the  surety  of  Wolcott,  a 
<xmstable.  It  ought  to  have  been  brought  on  the  bond  given  by 
the  constable  and  his  sureties,  in  the  name  of  the  inhabitants  of 
the  township,  and  not  otherwise. 

SOUTHARD,  J. 

Consent  will  not  cure  the  error ;  but  here  is  no  consent  that 
the  action  should  not  be  brought  on  the  bond ;  it  is  mere  consent 
that  suit  might  be  commenced  without  process,  and  leaves  the 
defendant  at  liberty  to  take  every  objection  to  the  form  of  the 
action. 

Judgment  reversed. 


*  PETER  MONTFORT  v.  MYNDERT  VANARSDALEN. 

1.  General  judgment  against  administrator,  (a) 

2.  Scirc  facia*  to  revive  judgment 

3.  Rule  of  reference. 

4.  Uniting  private  accounts  with  accounts  as  administrator.  (6) 

(o)  Little  v.   Brannin,  1  South.  £88;    Woodruff  v.  Woodruff,  1  Souih.  S76  ; 
CampjMd  v.  Ely,  1  Or.  150. 

(b)  Set-  Me  Keen  v.  Olyphant,  3  Harr.  442;  Chun  v.  Moore,  1  McCart.  4S6. 

*686 


804  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Montfort  v.  Vanarsdalen. 


On  certiorate,. 

This  case  was  argued  by  M' Donald,  for  plaintiff.  Frederick 
Frdinghuysen,  for  defendant. 

Opinion  of  the  court. 

KlRKPATRICK,  C.  J. 

The  judgment  in  this  case  was  against  Montfort  as  adminis- 
trator of  one  Hogland,  for  a  debt  due  from  the  intestate,  and 
was  entered  generally,  binding  his  own  proper  goods  and  not 
specially  to  be  levied  of  goods  of  the  intestate.  Several  years 
afterwards  there  was  a  scire  facias  to  revive  this  judgment,  and 
upon  the  return-day,  the  defendant  having  alleged  satisfaction^, 
and  having  filed  an  account  of  particulars  by  way  of  set-oif 
against  the  same,  a  rule  of  reference  was  entered  by  mutual  con- 
sent, referring  all  matters  in  difference  in  that  action,  and  also  all 
accounts  and  demands  between  the  parties,  to  certain  referees ; 
these  referees  reported  that  there  was  due  to  the  plaintiff  $43.23, 
and  upon  that  report  the  justice  entered  judgment,  again  gener- 
ally, against  the  defendant. 

Upon  the  review  of  this  proceeding  it  is  manifest  that  the  first 
judgment  was  erroneous,  for  the  administrator  was  not  liable  in 
his  own  estate,  and  it  is  quite  as  manifest  that  the  second  is  no 
better — nay,  that  it  is  much  worse — for  instead  of  a  general  judg- 
ment against  the  defendant  the  only  legitimate  judgment  that 
could  have  been  entered  was  that  execution  should  go  for  the 
balance  found,  and  that  against  the  goods  of  the  intestate. 

That  there  was  a  rule  of  reference  does  not  alter  the  case. 
The  rule  submits  all  matters  in  controversy  in  that  action,  and  also 
all  accounts  and  demands  between  the  parties.  What  parties  ?" 
Why,  the  parties  to  the  suit,  certainly,  that  is,  Vanarsdalen,  the 
plaintiff,  and  Montfort,  administrator  of  the  defendant.  The 
rule  could  mean  nothing  else  upon  the  fan?  construction  of  the 
words.  It  would  have  been  perfect  confusion  to  mingle  up  the 
proper  accounts  of  the  defendant  himself  with  those  of  the  in- 
testate, a  confusion  which  the  law  abhors. 

Let  the  judgment,  therefore,  be  reversed. 


-2  SOUTH.]         SEPTEMBER  TERM,  1819.  805 


Demand  t.  Gowen. 


*  JOSEPH  DEMUND  and  STINSON  DEMUND  v.  JOHN  GOWEN. 

Misconduct  of  jury,  (a) 
On  certiorari. 

The  conduct  of  the  jury  was  assigned  as  a  reason  for  the  re- 
versal of  this  judgment,  and  by  certain  affidavits  taken  under  a 
rule  of  the  court  it  appeared  that  after  the  jury  retired  to  con- 
sider of  their  verdict,  and  before  the  verdict  was  rendered,  and 
without  the  consent  of  the  defendant,  some  of  the  jurors  were 
out  of  the  room  at  the  bar  of  the  tavern  and  got  spirituous 
liquor ;  that  the  tavern-keeper  and  person  concerned  as  attorney 
for  the  plaintiff  handed  in  at  the  window  to  the  jury  liquor  and 
victuals ;  that  the  bystanders  conversed  with  the  jurors  at  the 
door  and  windows,  and  the  justice  and  one  of  the  witnesses  went 
into  the  room,  to  the  jury,  in  the  absence  of  the  defendants  and 
their  attorney.  (6) 

There  was  verdict  and  judgment  for  the  plaintiff,  Gowen. 

Studdiford,  attorney  for  plaintiff  in  certiorari. 

Ewing,  for  defendant.  If  the  jury  eat  or  drink  at  their  own 
expense,  before  agreeing  on  their  verdict,  it  is  a  misconduct  for 
which  they  are  punishable,  but  the  party  is  not  to  lose  the  benefit 
of  their  verdict.  If  they  eat  or  drink  at  the  expense  of  the 
party,  the  verdict  must  be  set  -aside.  By  the  affidavits  all  the 
alleged  misconduct  may  have  taken  place  after  they  had  agreed. 

BY  THE  COURT.  Such  conduct  is  highly  reprehensible,  the 
verdict  is  not  good,  the  judgment  must  be  reversed. 

(o)  Shepherd  v.  Baylor,  pott  827 ;  Sloan  T.  Harriton,  Ooxe  ItS ;  Drake  v. 
Jfewlon,  S  Zab.  Ill;  Eakin  T.  Morris  Canal,  4  Zub.  538;  Tomlin  ads  Cox,  4 
Sarr.  76;  PhUiptburg  Bank  v.  Pulmer,  t  Vr.  53;  Hutchinson  ads.  Coal  Cb.,  7 
Vr.  *4;  State  v.  Doty,  3  Vr.  403;  see  Clark  v.  Cole,  Penn.  **78 ;  Crane  T. 
-Sbyre,  /  Hal.  110  ;  Gram  v.  Bishop,  7  Hal.  153. 

(6)  Perrine  v.  Van  Note,  1  South.  146. 

*687 


*CASES  DETERMINED 


IN  THE 


SUPREME  COURT  OF  JUDICATURE 


OF   THE 


STATE    OF    NEW   JERSEY 

NOVEMBER  TERM,  1819. 


DEN,  ex  dem.  JAMES  YOUNG,  t>.  BENJAMIN  ROBINSON  and 
WILLIAM  CARPENTER. 

Devise  in  1755  to  A  for  life ;  then  to  8  and  his  heirs  male  ;  then  to  C  and 
her  heirs  male ;  B  and  C  die  in  A's  life.  C  has  son  D,  who  entered  into  pos- 
session in  1773  and  sold  to  E  in  fee.  In  virtue  of  the  statute  (Pat.  54),  E 
holds  the  fee  against  the  heirs  of  D.  (a) 

In  ejectment. 

This  action  was  brought  for  the  recovery  of  a  farm  in  the 
county  of  Salem,  mentioned  in  the  will  of  James  Mason  as  the 
Thompson  farm.  The  case  came  before  the  court  upon  a  special 
verdict  found  at  the  Salem  circuit  in  December,  1817,  which 
stated  the  following  facts  : 

(a)  See  Den,  Hugg  v.  Hugg,  ante  4*7;  Wright  v.  Scott,  4  Weak.  C.  C.  16; 
Den,  Johnson  v.  Morris,  2  Hal.  12  ;  Den,  Doremu*  v.  Zabriskie,  S  Or.  409;  De^ 
Spachius  v.  Spachius,  1  Harr.  17£  ;  Den,  James  v.  Dubois,  1  Harr.  985 ;  Den, 
Richman  v.  Baldwin,  1  Zab.  400 ;  Moore  v.  Rake,  £  Dutch.  574  /  Gardner  v. 
Sharp,  4  Wash.  C.  C.  610. 

*689  807 


808  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Robinson. 


1.  That  in  the  year  1755  James  Mason  died  seized  in  fee  of 
the  premises  in  question,  having,  by  his  last  will  and  testament, 
bearing  date  the  1st  day  of  September,  1755,  devised  the  said 
premises  in  the  words  following :    "  Imprimis.  I  give  and  de- 
mise unto  my  well-beloved  wife  her  choice  of  my  riding  horses, 
my  negro  man  and  one-half  of  my  movable  estate,  to  the  only 
proper  use  and  behoof  of  her,  her  heirs  and  assigns  forever ; 
and  also  that  plantation  whereon  John  Thompson  now  dwells ; 
and,  likewise,  the  house  and  lot  situate  in  the  town  of  Salem, 
where  Ralph  Walker  now  dwells,  to  the  only  proper  use  and 
behoof  of  her  and  her  assigns  during  her  natural  life.     Item. 
I  *give  and  demise  unto  my  cousin,  Joseph  Wood,  all  that  plan- 
tation whereon  said  John  Thompson  lives,  after  my  said  wife's 
decease,  to  him  and  the  heirs  of  his  body,  lawfully  begotten,  for- 
ever ;  and  for  want  of  such  heirs,  the  same  to  go  to  my  cousin, 
Sarah  Young,  to  her  and,  the  heirs  of  her  body,  lawfully  begotten, 
forever." 

2.  That  the  said  will  of  James  Mason  was  duly  proved,  ac- 
cordiug  to  law,  on  the  1st  day  of  September,  1755. 

3.  That  Joseph  Wood,  the  devisee  in  the  will  of  the  said 
James  Mason  mentioned,  died  in  the  lifetime  of  the  said  Mary 
Mason,  widow  of  the  said  James  Mason,  the  testator,  without 
issue. 

4.  The  said  Mary  Mason,  after  the  death  of  the  said  James 
Mason,  intermarried  with  John  Roberts. 

5.  That  Sarah  Young,  the  devisee  mentioned  in  the  will  of 
the  said  James  Mason,  also  died  in  the  lifetime  of  the  said  Mary 
Mason,  afterwards  Mary  Roberts. 

6.  That  the  said  Sarah  Young  left  issue :   William  Young,  her 
eldest  child ;  James  Young,  her  second  child ;    Joseph  Young, 
her  third  child,  and  Mary  Young,  her  fourth  child. 

7.  That  before  and  at  the  time  of  the  births  of  the  said  Wil- 
liam, James,  Joseph  and  Mary,  the  said  Sarah  Young  was  the 
wife  of  James  Young. 

*  8.  That  the  said  James  Young,  the  husband  of  the  said  Sarah 
Young,  died  in  the  year  1771. 

*690 


2  SOUTH.]          NOVEMBER  TERM,  1819.  809 


Den  v.  Robinson. 


9.  That  William  Young,  the  eldest  son   of  the  said  Sarah 
Young,  survived  Mary  Mason. 

10.  That  Mary  Mason  died  possessed  of  the  premises  ;  and,  at 
In  r  decease,  William   Young  took  possession  of  the  premises 
in  question  and  occupied  the  same  in  the  year  1772  ;  and  on  the 

of  February,  1775,  conveyed  the  same  to  Jonathan  Bilder- 


11.  The  said  William  Young  died  on  the  12th  day  of  March, 
1798,  leaving  lawful  issue,  to  wit:   James  Young,  his  eldest  son 
and  lessor  of  the  plaintiff,  and  William  Young  ;  and  that  James 
Young  was  about  twenty  or  twenty-one  years  old  at  the  death 
of  his  father. 

12.  That  at  the  time  of  the  death  of  James  Mason  the  prem- 
ises in  question  were  in  the  possession  of  John  Thompson,  the 
'person  mentioned  in  his  will,  who  continued  for  some  time  a 
tenant  to  Mary  Mason. 

13.  That  the  said  premises  in  question  are  one  hundred  and 
five  acres  of  land  in  the  township  of  Mannington,  which,  at  the 
time  of  the  service  of  the  declaration  in  ejectment  in  this  case 
were  occupied  by  Benjamin  Robinson,  as  tenant  under  William 
Carpenter,  the  other  defendant  in  this  cause. 

And  the  jurors  further  found  that  the  said  William  Young, 
the  eldest  son  of  said  Sarah,  by  deed  bearing  date  20th  of  Feb- 
ruary, 1773,  conveyed  the  premises  to  one  Jonathan  Bilderback  ; 
that  the  said  Jonathan  Bilderback  died  seized  of  the  premises,  on 
the  day  of  ,  A..  D.  ,  leaving  issue  Kidd  Bilder- 

back, Peter  Bilderback,  Edward  Bilderback,  Jonathan  Bilderback, 
his  sons  and  heirs-at-law  ;  and  further,  that  John  Tuft,  &*q.,  late 
high  sheriff  of  Salem,  by  deed  bearing  date  28th  of  June,  1802, 
conveyed  the  right  of  the  said  Kidd  Bilderback  and  Edward  Bil- 
derback to  Jonathan  Bilderback  ;  and  that  Peter  Bilderbark,  by 
deed  dated  20th  of  March,  1804,  conveyed  his  share  of  the  prem- 
ises to  said  Jonathan  Bilderback  ;  and  that  the  said  Jonathan, 
by  deed  the  19th  of  February,  1805,  conveyed  the  said  premises 
to  William  Griscome,  Jr.,  and  that  the  said  William  Griscome,  Jr., 
and  wife,  by  deed  on  the  4th  of  March,  1808,  conveyed  to  John 
Tuft,  and  John  Tuft,  19th  of  March,  1808,  conveyed  to  William 

*691 


810  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Robinson. 


Carpenter,  one  of  the  defendants ;  that  the  said  William  Young, 
father  of  the  lessor  of  the  plaintiff,  died  on  his  own  farm  in  the 
township  of  Downs,  at  a  place  called  Nantuxet  Neck,  in  the  county 
of  Cumberland,  which  contained  the  quantity  of  one  hundred 
and  thirty  or  one  hundred  and  forty  acres,  and  which  was  con- 
veyed to  the  said  William  Young  in  fee  simple,  by  William 
Paulin,  for  the  consideration  of  £1,000.  . , 

Jeffers,  for  the  plaintiff.  The  premises  were  devised  to  Mary 
Mason  for  life  ;  remainder  to  Joseph  Wood,  in  tail,  with  remain- 
der to  Sarah  Young,  in  tail. 

Joseph  Wood  died  without  issue  during  the  continuance  of  the 
particular  estate.  On  his  death  the  remainder  became  vested  in 
Sarah  Young,  who  died  also  during  the  continuance  of  the  life 
estate  of  Mary  Mason,  neither  of  them  having  been  in  possession. 
On  the  death  of  Mary  Mason,  William  Young,  eldest  son  of 
Sarah  Young,  took  possession  of  the  premises  and  continued  in 
possession  until  the  20th  of  February,  1773,  when  he  conveyed 
to  Jonathan  Bilderback,  under  whom  the  defendants  claim.  The 
lessor  is  William  Young's  eldest  son. 

Two  points  are  raised  for  the  consideration  of  the  court — 1. 
Whether  the  title  of  the  lessor  is  affected  by  our  act  limiting 
estates  tail,  passed  August  26th,  1784.  And  2.  Whether  William 
Young  was  the  second  devisee  in  tail  under  that  act. 

1.  The  title  of  the  plaintiff  is  not  affected  by  the  act.  There 
is  no  question  but  William  Young  entered  into  possession  as 
tenant  in  tail.  He  conveyed  on  the  20th  of  February,  1773, 
more  than  eleven  years  before  the  passing  of  the  act.  He  could 
have  conveyed  only  his  interest  during  life,  for  he  had  no  greater 
estate  to  convey.  The  act  which  came  after  could  not,  in  any 
way,  affect  the  estate,  nor  can  it  now  affect  the  case.  The  words 
of  the  act  are,  "  hath,  agreeably  to  such  devise  or  entail,  passed 
through  one  descent  since  the  death  of  the  testator,  and  is  now  in 
the  second  or  more  remote  descent  from  the  testator,  all  such 
land  or  other  real  estate  shall  be  deemed,  taken  and  adjudged  to 
be  the  proper  estate  in  fee  simple  of  the  present  possessor  ;  provi- 
ded, the  testator  had  a  fee  &c.,  and  also  provided  the  person  in 

*692 


2  SOUTH.]  NOVEMBER  TERM,  1819.  811 


Den  ».  Robinaon. 


possession  holdeth  the  same  in  tiie  line  of  descent,  mentioned  and 
directed  in  and  by  such  devise  in  tail. 

The  act  could  only  operate  on  tenants  in  tail  then  in  posses- 
sion, and  not  upon  such  tenants  as  had  conveyed  their  estates. 
If  a  purchaser  of  the  estate  of  tenant  in  tail  was  in  possession  of 
the  entailed  premises  at  the  time  the  act  passed,  he  could  not  be 
benefited,  inasmuch  as  he  could  not  "  hold  in  the  line  of  descent 
mentioned  and  directed  in  and  by  such  devise  in  tail." 

The  act  of  1784,  limiting  estates  tail,  was  made  in  favor  of  the 
heirs  generally  of  tenants  in  tail,  and  to  unfetter  such  estates ; 
but  to  apply  it  to  an  estate  which  the  tenant  had  aliened  ten  or 
twelve  years  before  its  passage  would  be  to  make  it  operate  for 
the  benefit  of  the  purchaser  to  the  manifest  injury  of  the  heirs  in 
tail.  It  would  also  be  contrary  to  the  understanding  of  the  par- 
ties at  the  time  the  conveyance  took  place,  for  it  must  have 
been  then  understood  that  an  estate,  during  his  life,  was  all 
William  Young  could  convey. 

2.  If  it  is  considered  that  the  act  affects  the  case,  then  Wil- 
liam Young  was  the  first  possessor  of  the  entailed  estate  secondly 
mentioned  in  the  line  of  entailment.  Joseph  Wood  and  *Sarah 
Young,  who  had  vested  remainders,  died  during  the  existence 
of  the  particular  estate;  and,  on  the  death  of  Mary  Mason, 
William  Young,  the  father  of  the  lessor,  entered  into  possession 
of  the  entailed  estate  as  the  first  possessor  under  the  devise  in 
tail. 

The  words  of  the  explanatory  act,  "  been  possessed  by  the  first 
devisee  in  tail "  <fcc.,  "  and  is  now  the  property  of  the  next  devi- 
see in  tail,"  must  be  construed  to  mean  the  property  of  the 
second  possessor,  whether  he  is  the  third  or  fourth  person  named 
in  the  devise.  The  legislature  intended  that  the  first  possesor 
under  the  devise  in  tail  should  have  but  a  life  estate,  and  the 
second  possessor  in  the  same  line  of  entailment  should  have  a 
fee  simple.  If  we  strike  out  of  the  original  act  the  words 
"  passed  through  one  descent  since  the  death  of  the  testator,  and 
is  now  in  the  second  or  more  remote  descent  from  the  testator/* 
and  in  the  place  of  these  words  insert  the  words  of  the  explana- 
tory act,  the  section  would  read  as  follows :  "  That  all  lands  or 

*693 


812  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Kobinson. 


•other  real  estate  which  have  heretofore  been  devised  in  tail  of 
any  kind,  and  hath,  agreeably  to  such  devise  or  entail,  been  pos- 
sessed by  the  first  devisee  in  tail,  and  is  now  the  property  of  the 
next  devisee  in  tail,  after  the  decease  of  the  first  devisee,  in  the 
line  mentioned  in  the  devise  in  tail  under  which  they  may 
•claim"  all  such  land  shall  be  taken  and  deemed  "  to  be  the  estate 
in  fee  simple  of  the  present  possessor." 

Two  persons  must  actually  possess  the  entailed  estate  accord- 
ing to  the  line  of  entailment  mentioned  in  the  will.  The  words 
41  have  been  possessed "  mean  an  actual  possession.  And  the 
words  "  is  now  the  property*  of  the  next  devisee  in  tail  "  prove 
that  an  actual  possession  is  to  be  had  by  two  persons  under  the 
•devise  in  tail.  For  example — if  lands  be  devised  to  A  for  life, 
remainder  to  B  in  tail,  and  for  want  of  issue  of  B  to  C,  and  on 
failure  of  the  issue  of  C  to  D.  If  all  the  intermediate  persons 
•die  without  issue  during  the  existence  of  the  life  estate  but  D, 
D  has  a  vested  remainder  in  tail.  And  if  on  the  death  of  A 
D  enters,  he  is  the  first  possessor  under  the  entailment  according 
to  the  act,  although  he  is  the  fourth  person  named  in  the  devise, 
and  the  heirs  of  D  would  have  a  fee  simple;  and  this  is  the  case 
now  before  the  court. 

L.  H.  Stockton,  in  answer.  It  was  his  duty  and  he  hoped  it 
would  be  in  his  power,  in  opposition  to  the  argument  delivered, 
*to  show — 1.  That  Sarah  Young,  taking  a  vested  remainder  in 
fee  tail,  it  descended,  on  her  death,  to  her  eldest  son,  William 
Young.  2.  This  vested  remainder  coming  to  William,  by  de- 
scent, was  converted  into  a  fee  simple  by  the  statute  (Pat.  54], 
and  vested  in  his  alienee,  to  whom  he  conveyed,  by  deed,  20th 
of  February,  1773.  3.  That  if  defendant  have  not  the  fee,  the 
lessor  cannot  recover  on  this  record  as  heir  in  fee  tail. 

1.  The  first  proposition   does   not  require  argument,  being 
neither  doubted  nor  denied. 

2.  When  William  took  it  was  either  as  original  devisee  or  by 
descent  from  his  mother — as  purchaser  or  heir.     He  could  not 
take  as  purchaser.     The  words  of  the  will,  "  heirs  of  her  body, 
lawfully  begotten,  forever,"  are  of  technical  signification — words 

*694 


2  SOUTH.]          NOVEMBER  TERM,  1819.  813 


Den  r.  Robinson. 


of  limitation,  not  of  purchase.  8  Hen.  &  M.  266;  2  BL  C.  20. 
It  is  true,  in  some  cases,  particularly  in  the  time  of  Lord  Mans- 
field, it  has  been  held  that  in  very  strong  cases  of  plain  intent, 
"  heirs  of  the  body  "  may  mean  particular  persons,  in  full  life 
and  known  to  the  testator,  who  should  take  as  original  devisees  ; 
but  they  are  exceptions  from  the  general  rule  in  favor  of  plain 
intent.  2  Burr.  1100.  And  though  Lord  Holt  and  Mr.  Har- 
grave  argue  the  rule  to  be  inflexible,  yet  exceptions  of  plain 
intent  may  be  admitted.  But  here  is  no  such  intent ;  no  circum- 
stance or  word  to  show  that  the  expression  was  used  as  descriptio 
personarum,  or  intended  to  carry  the  land  to  the  children,  or 
any  one  of  them,  as  original  devisee,  but  the  contrary.  It 
does  not  appear  that  a  single  child  of  Sarah  Young  was 
born,  or,  if  born,  known  to  testator.  To  make  William 
the  original  devisee  leads  to  the  monstrous  absurdity  that  one 
not  named,  perhaps  not  known,  should,  by  arbitrary  assump- 
tion, be  first  devisee,  to  the  exclusion  of  Sarah,  who  is  named 
as  cousin,  personally  known  and  selected  in  positive  words  as 
the  object  of  the  bounty  and  devisee  of  the  remainder ;  an 
absurdity  conclusive  in  a  case  like  this.  The  manifest  intent, 
if  not  repugnant  to  the  rules  of  law,  must  regulate  the  con- 
struction. 1  Wash.  102;  1  Burr.  228-285;  Gttb.  Deo.  68; 
2  Burr.  1112,  1113.  Now,  the  plain  intent  of  the  testator 
was,  after  the  death  of  his  wife  and  of  Joseph  Wood,  without 
issue,  that  Sarah  Young,  and  she  alone,  should  be  the  first  and 
principal  object  of  his  bounty.  William  was  to  take  in  right  of 
his  mother,  and  in  virtue  of  his  heirship  to  her.  In  fact,  after 
the  estate  vested  in  her  it  was  impossible  that  it  could  go  to  him 
as  original  devisee.  He  *took,  not  by  purchase,  but  descent, 
and  was,  therefore,  second  in  descent  from  testator,  and  his  estate 
was  converted  into  a  fee  by  the  statute.  But  it  is  said  the  words 
of  the  explanatory  act  exclude  this  case ;  it  does  not,  however, 
diminish  the  force  of  the  argument.  The  word  "  possessed  " 
clearly  means  such  existence  of  ownership  as  is  consistent  with  the 
subject-matter  spoken  of  in  the  context.  1  Bl.  Com.  59.  Pos- 
session does  not  always  mean  the  touch  of  the  foot.  It  may  be 
satisfied  by  the  vesting  of  an  estate.  An  estate  is  the  interest  in 

*69o 


NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Robinson. 


the  land,  and  where  that  is  a  remainder,  and  vests,  its  proprietor 
is  possessed  of  the  estate,  though  the  intervening  particular  estate 
prevents  the  actual  enjoyment.  The  possession  of  the  particular 
tenant  is,  to  all  necessary  legal  purposes,  the  possession  of  the 
remainderman.  5  Jac.  L.  D.  44&-  These  explanatory  words, 
then,  attach  to  Sarah  Young  (2  BL  166) ;  they  cannot  apply  to 
William.  He  never  took  by  devise ;  nor,  if  he  did,  was  he  first 
devisee.  His  mother  was  prior  to  him.  And  although  he  pos- 
sessed, yet  wanting  the  other  constituents  of  being  devisee  and 
first  devisee,  he  is  not  the  person  contemplated  in  the  act  any 
more  than  a  juror  would  answer  the  law  (Pat.  25  ff)  who  had  citi- 
zenship without  residence,  age,  or  freehold.  The  result  is  obvi- 
ous. But  admit  that  the  words  do  not  apply  to  Sarah,  they 
cannot  to  William,  and  it  is  demonstrable  that  they  do  not  to 
anyone  else,  and  therefore  the  explanatory  act  has  no  applica- 
tion to  the  case,  but  the  decision  must  rest  on  the  first  act.  The 
result,  then,  is  the  same;  his  estate  is  converted  to  a  fee  by  the 
first  act,  because  it  had  passed  through  one  descent  since  testa- 
tor's death.  The  better  construction,  however,  is  to  apply  the 
supplement  to  Sarah  Young,  because  then  the  statute  takes  effect. 
19  Vin.  528  §  160.  Indeed,  the  result  of  the  two  acts  is  plain, 
and  well  expressed  by  Judge  Pennington.  See  his  Rep.  825. 
"  The  plain  meaning  of  the  act  is  that  where  an  entailment  has 
been  or  shall  be  created,  the  entail  shall  not  continue  beyond  the 
first  descent.  The  word  '  first '  in  the  concluding  clause  of  the 
act  refers  to  the  donee  in  tail,  the  original  stock  of  the  entail- 
ment." This  donee  is  Sarah  Young.  The  entail  shall  not  con- 
tinue beyond  her  life.  Her  heir  takes  a  fee.  The  lessor,  claim- 
ing in  tail,  cannot  recover. 

But  if,  in  strict  construction,  this  conclusion  be  at  all  doubt- 
ful, it  is  freed  from  doubt  on  the  principles  applied  to  the  con- 
struction of  remedial  statutes,  which  are  liberal,  for  the  purpose 
of  *suppressing  the  mischief  and  advancing  the  remedy.  4  j^ac- 
650  ;  19  Vin.  526.  This  act  is  remedial.  Estates  tail  arose  from 
the  statute  de  donis,  enacted  A.  D.  1285,  during  the  reign  of  a 
bloody  tyrant,  Edward  I.,  through  the  influence  of  haughty 
barons,  to  subserve  their  aristocratical  pride  by  perpetuating  their 

*696 


2  SOUTH.]  NOVEMBER  TERM,  1819.  815 


Den  v.  Robinson. 


immense  landed  estates  in  their  respective  families,  and  pressing 
down  those  whom  they  contemptuously  styled  villeins  and  V;L— 
sals,  and  to  support  an  abominable  system  of  feudal  slavery. 
2  El.  US ;  2  Hume  66.  It  is  not  surprising  that  these  estates 
were  considered  abhorrent  to  the  spirit  and  genius  of  our  gov- 
ernment, and  that  here  and  in  other  states,  acts  should  have  been 
passed  to  destroy  them,  and  avoid  the  expensive  modes  which 
legal  subtlety  had  devised  to  curtail  them.  Such  acts  require  and 
deserve  a  most  liberal  construction,  and  the  court  will  lean  in 
favor  of  that  argument  which  tends  to  destroy  rather  than  that 
which  protracts  the  existence  of  such  fettered  estates  so  obstruct- 
ing to  the  free  commerce  and  liberal  ideas  of  modern  times. 
Penn.  823  is  cited  as  adverse  to  this  argument.  But  it  is  not  so. 
W.  Hamilton,  who  is  recognized  as  a  son  of  the  testator,  on  the 
face  of  the  will,  was  correctly  adjudged  to  be  the  first  devisee, 
and  to  take  in  tail  male,  both  by  express  words  and  unequivocal 
intent,  and  dying  without  male  issue  the  estate  reverted  to  the 
heirs  general.  If  he  had  left  a  son  that  son  would  have  taken  a 
fee,  as  William  Young  did. 

William  Young's  estate  being  converted  into  a  fee  it  is  to  be 
proved  that  the  same  was  vested  in  his  alienee.  The  subject- 
matter  is  the  land ;  it  is  also  a  quality  attached  to  the  land,  not  a 
personal  privilege,  but  follows  the  land  in  nature  of  an  encum- 
brance. The  second  section  declares  that  the  possessor  shall  have 
a  fee  simple,  provided  he  was  in  the  second  or  more  remote  de- 
scent at  the  time  of  passing  the  act,  and  held  in  the  line  of  en- 
tailment.  Now,  Bilderback  may  be  said  to  have  then  held,  in 
that  line,  as  a  necessary  result  of  the  unity  and  privity  of  right 
between  grantor  and  grantee,  in  a  deed  like  the  present,  of  ample 
warranty  and  conveying  all  reversionary  interests.  Whatever 
may  be  the  strict  construction  of  the  words,  on  verbal  criticism, 
it  is  evident  they  were  intended  to  convey  the  idea  of  unity  and 
privity  of  title  between  the  possessor,  whose  estate  was  to  be 
converted  to  a  fee,  and  the  original  creator  of  the  estate  in  tail, 
whether  the  possessor  was  the  grantee  or  himself  *the  heir  in 
tail.  If  it  had  been  intended  to  restrict  the  benefit  to  the  family 
or  blood  of  testator  and  deny  it  to  the  alienee,  purchasing  for  a 

*697 


816  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Robinson. 


valuable  consideration,  precise  words  phraseologically  expressive 
of  that  idea  would  have  been  used,  such  as,  provided  the  pos- 
sessor shall  be  heir  in  tail  of  the  blood  &c.  This  argument  is 
rendered  conclusive  by  those  words  of  the  second  section,  which 
substantially  conclude  the  whole  legislation  on  the  subject,  "  that 
no  entail  of  any  lands  shall  continue  to  entail  the  same,  in  any 
case  whatever,  longer  than  the  life  of  the  person  to  whom  the 
same  hath  been  or  shall  be  first  given  or  devised  by  such  entail." 
These  words,  subject  to  no  uncertainty,  extend  to  all  lands, 
whether  the  possessor  came  in  under  the  form  of  the  original 
gift  of  the  blood  of  the  entailing  ancestor,  or  be  an  alienee  of 
another  family  coming  in  by  deed.  If,  then,  the  benefit  be  con- 
fined to  the  issue  of  the  body,  this  clause  is  repugnant  to  the 
former  part  of  the  section ;  if  it  be  extended  to  a  bonafide  pur- 
chaser both  clauses  are  reconcilable  to  each  other  and  to  reason 
and  justice.  The  latter  sense  is  to  be  preferred.  19  Vin.  52? '  y 
528.  But  if  it  be  insisted  that  these  clauses  are  irreconcilable, 
then  the  words  which  speak  the  last  intent  shall  prevail.  19 

Vin.  522.  This  last  principle,  however,  is  not  insisted  on,  be- 
cause all  may  be  reconciled.  The  object  of  this  last  proviso  was 
to  guard  against  interfering  with  the  title  of  the  creator  of  the 
estate  in  tail  by  producing  a  statutory  confirmation  of  the  title 
of  any  stranger,  who,  after  a  second  descent  from  the  entailing 
ancestor,  might  have  become  possessed  of  the  land  under  a  claim 
adverse  to  his.  It  was  necessary  to  effect  this  object,  and  if  re- 
stricted to  it,  is  satisfied  and  usefully  employed,  but  if  perverted, 
to  deny  the  benefits  of  the  enacting  clauses  to  the  alienee  for 
valuable  consideration,  would  be  against  justice,  convenience  and 
the  application  of  remedial  statutes  to  the  evils  to  be  remedied. 
Such  construction  is  condemned.  Garth.  136 ;  Litt.  §  138 ; 

Cowdriefs  Case,  5  Rep.  Again,  cases  within  the  mischief  are  to 
be  considered  as  if  mentioned  in  express  language.  19  Vin. 
514,  516;  1  Ins.  24;  4  BOG.  649. 

The  case  from  Coxe  3^0  was  essentially  different  from  the 
present,  and  rested  upon  the  construction  of  a  harsh  and  highly 
penal  treason  act  of  December  llth,  1778.  Wils.  New  Jersey 
Laws  67.  The  point  in  the  case  most  nearly  resembling  this 


2  SOUTH.]          NOVEMBER  TERM,  1819.  817 


Den  v.  Robinson. 


was  ""necessarily  decided  on  the  positive  words  of  the  sixteenth 
section  of  that  act,  page  360. 

It  is  confidently  believed  that  the  first  two  propositions  are  es- 
tablished and  are  conclusive  for  the  defendant.  The  third  will 
be  cursorily  examined.  A  plaintiff  must  recover  on  the  strength 
of  his  own  title,  which  must  be  clear.  4  Burr.  2^87.  Now,  if 
the  statute  did  not  operate  on  the  estate  of  the  alienee  to  enlarge 
it,  it  doubtless  destroyed  the  entail,  and  the  fee,  by  way  of  re- 
version, remained  to  William  Young,  descendible,  on  his  death, 
in  1798,  to  his  heirs-at-law,  that  is,  to  all  his  children.  He  had 
at  least  two  sons,  perhaps  more.  The  lessor  is  not,  therefore, 
entitled  to  more  than  half  as  tenant  in  common.  He  cannot, 
therefore,  recover  upon  the  present  count,  which  is  on  a  separate 
lease  for  a  separate  and  several  estate. 

Mr.  Ewing  here  read  from  1  Burr.  326,  and  Sider.  229,  to 
prove  that  there  may  be  a  declaration  for  an  entire  estate ;  evi- 
dence of  title  to  moiety  or  less ;  and  recovery  according  to  the 
evidence. 

Mr.  Stockton.  These  cases  show  only  that  where  plaintiff 
counts  for  a  certain  part,  as  one-half,  and  proves  title  to  another, 
say  one-third,  he  may  recover  according  to  his  title.  He  may 
claim  more  and  recover  less  land,  but  they  do  not  show  that  he 
may  claim  as  sole  owner,  and  recover  an  undivided  moiety,  as 
tenant  in  common.  This  would  be  against  the  rule  that  the 
atlegata  and  probata  must  agree. 

Other  questions  of  weight  are  left  for  discussion  to  the  asso- 
ciate counsel.  It  is  only  proper  to  add  that  if  the  question  be 
abstruse,  and  there  be  doubt  in  the  court,  it  ought  to  operate  in 
favor  of  defendant.  The  burden  of  proof  is  on  the  plaintiff. 
That  proof  ought  to  be  most  clear,  after  more  than  forty  years' 
continual  possession  of  defendants,  and  those  under  whom  they 
claim  ;  after  almost  twenty  years'  adverse  possession,  since  plain- 
tiff's pretended  right  of  recovery  arose  on  the  death  of  his  father, 
during  which  time  he  repeatedly  saw  the  land  sold  to  different 
alienees,  and  greatly  improved ;  and  especially  after  his  father, 
*698  52 


818  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Eobinson. 


In  1773,  received  for  it  a  valuable  consideration,  with  which,  it 
is  highly  probable,  he  bought  other  land,  on  which  plaintiff  was 
nurtured,  and  which  he  now  enjoys.  These  facts  are  not  so  dis- 
closed, as  to  form  a  direct  specific  bar,  but  are  pro*per  to  be  con- 
sidered as  auxiliary,  in  determining  a  supposed  right,  resting  on 
doubtful  grounds,  if  the  court  so  regard  it. 

J2.  Stockton,  on  the  same  side.  The  material  facts  are,  that  in 
1755,  James  Mason  devised  to  Mary  Mason  for  life,  and  annexed 
•a  vested  remainder  in  tail  in  Joseph  Wood,  and  a  second  vested 
remainder  in  tail  in  Sarah  Young.  Joseph  Wood  died,  without 
issue,  during  the  particular  estate.  Sarah  Young  also  died,  leav- 
ing William  Young  son  and  heir  in  tail.  He  entered  on  the 
death  of  Mary  Mason,  and  in  1773,  conveyed,  with  warranty,  to 
Bilderback.  His  son  James  claims,  by  descent,  as  heir  in  tail. 
Defendant  claims  under  Bilderback,  the  alienee  of  lessor's  father. 

Two  propositions  are  to  be  established — 1.  If  William  Young 
had  remained,  his  estate  would  have  been  converted  into  a  fee, 
by  the  act  of  1784.  2.  His  alienee  took  the  enlargement  of  the 
estate  created  by  that  act. 

1.  Sarah  Young  took  a  vested  remainder ;  she  was  the  first 
tenant  in  tail.  William  took,  by  descent,  from  her ;  he  is  the 
second  in  descent,  spoken  of  in  the  act.  Pat.  54-  The  legisla- 
ture intended  the  land  to  be  unalienable  during  the  life  of  one 
tenant  in  tail,  but  to  give  a  fee  to  the  second.  But  the  words 
used  were  calculated  to  prevent  this  effect,  because  the  first  tenant 
does  not  claim  by  descent.  •  This  produced  the  supplementary  act. 
Pat.  78.  The  use  of  the  word  descent  was  the  error  in  the  first 
act ;  of  the  word  devise  in  the  second.  But  the  object  of  both 
is  equally  plain,  to  give  the  fee  to  the  second  person,  to  William. 
It  is,  however,  objected  that  the  first  devisee  must  be  in  actual 
possession ;  that  Sarah  Young  was  not,  and  therefore  could  not 
be  the  person  meant  by  first  devisee,  but  that  William  must  be. 
But — 1.  Sarah  Young  answers  the  description  of  devisee,  Wil- 
liam does  not ;  he  is  no  devisee,  he  takes  by  descent.  The  dis- 
tinction attempted  between  vested  remainder  and  remainder  in 
possession  is  not  correct.  The  act  speaks  of  the  estate  tail  passing 

*699 


2  SOUTH.]          NOVEMBER  TERM.  1819.  819 


Den  v.  Robinson. 


to  the  second  descent.  The  adverse  argument  rests  altogether  on 
the  word  possessed  ;  but  "  possessor  "  is  here  used  as  synonymous 
with  "  owner."  It  is  in  both  acts  and  may  be  supplied  by  that 
word  in  both.  The  intent  of  the  law  must  prevail,  and  that  was 
to  unfetter  the  estate  tail.  See  especially  the  concluding  clause 
of  section  2  of  first  act.  It  cannot  last  longer  *than  the  first 
life.  But  on  plaintiff's  construction  it  must  last  three  lives  be- 
fore the  change  of  the  estate  can  take  place.  Such  a  construction 
must  be  corrupt. 

2.  William's  estate  became  a  fee ;  it  shall  be  a  fee  in  his 
alienee.  The  enlargement  follows  the  land,  not  the  person.  He 
parted  with  his  right  in  1773,  and  covenanted  that  he  had  a  fee. 
The  covenant  follows  the  lands.  7  Ora.  164-  The  case  in  Coxe 
-340,  was  a  forfeiture ;  there  the  construction  is  strict,  here  it  is 
to  be  liberal.  The  deed  by  tenant  in  tail  carries  more  than  the 
estate  for  life  of  the  grantor ;  it  carries  a  fee  against  all  the 
•world  but  the  issue,  and  against  them  until  they  enter.  The  fee 
is  defeasible  by  the  heirs,  but  if  they  do  not  enter,  the  deed 
enures  to  convey  a  fee  simple.  Here  the  law  enlarged  the  estate 
and  the  heirs  could  not  enter.  3  Burr.  1703 ;  1  Atk.  1;  Com. 
Rep.  19.  It  follows  that  the  estate  may  be  and  was  enlarged  in 
the  hands  of  the  alienee.  There  must  be  an  entry  in  fact,  by 
the  issue  in  tail,  and  this  appearing  upon  the  record.  It  is  abso- 
lutely necessary  to  complete  the  title  of  the  plaintiff,  or  to  defeat 
that  of  the  defendant.  Confession  is  not  enough  where  entry  is 
part  of  the  title.  Ran.  197 -,  Doug.  467;  2  Bla.  354,  355,  356. 
So  there  must  be  actual  ouster  before  tenant  in  common  can 
maintain  ejectment.  7  Cm.  463,  471. 

But  still  further.  What  gave  heirs  a  right  to  enter?  The 
statute  de  donis.  That  statute  is  repealed,  and  shall  the  conse- 
quences remain  ?  Before  that  statute  these  estates  were  fees  ab- 
solute after  the  death  of  an  heir,  and  such  ought  to  be  the  doctrine 
now.  We  ought  to  be  remitted  to  the  old  law.  This  point  was 
broached  in  Den  v.  Fogg,  but  it  did  not  properly  arise  and  could 
not  be  decided. 

But  again.  Defendant  claims  the  benefit  of  the  warranty  under 
which  he  holds  from  William  Young,  and  which  will  prevent 

*700 


820  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Kobinson. 


the  lessor,  who  is  his  heir,  from  recovering.  At  common  law 
the  heir  could  not  recover  against  a  warranty.  Co.  Lit.  §  697  pp. 
364,  $65'  The  statute  of  Gloucester  altered  it  as  to  tenant  by  the 
curtesy,  unless  assets  descended  to  the  heir.  This  is  the  origin 
of  the  distinction  between  warranty  with  and  without  assets. 
The  principle  of  this  statute  was  applied,  by  equitable  considera- 
tions, to  the  statute  de  donis,  so  that  under  it  warranty  without 
assets  did  not  bind  the  issue,  bu,t  with  assets  it  did  bind  the  issue ;. 
for  then,  if  he  recover  the  estate,  he  must  fulfill  the  warranty. 
0  Bl  *Cbm.  301;  1  Oru.  53;  Gilb.  Ten.  132;  Harg.  Coke  373. 
In  this  case  assets  descended.  William  Young  died  intestate  on 
his  own  farm.  The  verdict  does  not  so  say,  but  it  is  probable, 
from  its  situation  and  acres,  that  it  was  of  equal  value  with  the 
premises.  And  no  unfavorable  presumption  arises  from  the 
value  not  being  found,  for  if  the  verdict  is  in  this  respect  defec- 
tive, the  court  will  send  it  back  to  be  amended.  The  conclusion 
is  that  Mary  Mason  took  estate  for  life ;  Sarah  Young  a  remain- 
der in  tail.  It  descended  to  William  Young,  in  whom  it  would 
have  become  a  fee  had  he  held  it.  It  was  enlarged  by  the  stat- 
ute, in  the  hands  and  for  the  benefit  of  his  alienee.  And  even  if 
it  was  not,  his  heirs  are  barred  by  the  warranty,  and  the  lessor 
cannot,  therefore,  recover. 

Ewing,  in  reply.  The  will  gives — 1.  A  life  estate  to  the  widow 
of  testator.  2.  A  vested  remainder  in  tail  to  Joseph  Wood- 
3.  A  remainder  in  tail  to  Sarah  Young.  After  Joseph  Wood's 
death  Sarah  Young  had  a  vested  remainder  in  fee  tail.  At  her 
death  the  estate  in  remainder  descended  to  William  Young,  who,, 
after  the  widow  died,  was  entitled  to  the  possession.  He  entered 
into  possession,  and  conveyed  by  deed  to  Bilderback.  He  died, 
and  James,  the  lessor,  his  eldest  son,  became  tenant  in  tail.  This 
is  a  fair  view  of  the  case  on  common  law  principles,  and  by  them 
it  is  perfectly  clear,  and  is  not  even  contradicted,  that  James  ia 
entitled  to  recover.  It  will  be  perceived  that  on  many  points  the 
parties  do  not  differ.  Their  dispute  arises  upon  the  construction 
of  the  acts  of  the  legislature.  But  before  they  are  examined  it  is 
proper  to  answer  one  or  two  suggestions  which  have  been  made. 

*701 


SOUTH.]          NOVEMBER  TERM,  1819.  821 


Den  v.  Robinson. 


It  is  urged  that  justice  and  feeling  plead  for  the  defendant,  and 
should  prevail  if  there  be  doubt.  The  argument  is  unbecoming!  v 
addressed  to  a  judge,  whose  business  is  to  propound  the  law,  and 
who  knows  that  he  effectuates  justice  when  he  supports  the  law. 
But  why  is  justice  in  his  favor?  He  purchased  a  defective  title, 
with  a  full  knowledge  of  its  infirmities  ;  they  are  spread  upon 
his  deed,  and  for  upwards  of  nineteen  years  he  has  enjoyed  a 
farm  to  which  he  had  no  title.  .  Again.  It  is  said  that  the-  at- 
tempt of  the  plaintiff  tends  to  foster  and  continue  estates  tail, 
which  are,  in  themselves,  odious,  and  were  introduced  under  a 
remorseless  tyrant  to  pamper  his  libidinous  nobles.  But  zeal 
ought  not  to  misguide  us ;  for  though  estates  tail,  "unrestricted, 
are  odious,  yet,  limited,  they  are  useful  and  to  be  respected.  And 
although  Edward's  conduct  towards  Wallace  and  the  Bruce  are 
a  blot  on  his  character,  yet  was  he  the  Justinian  of  England  (4 
Bl.  4®4)>  one  of  her  greatest  monarchs,  and  the  law  owes  more, 
perhaps,  to  him  than  to  any  other.  It  seems,  also,  to  be  doubted 
whether  such  estates  really  exist  here.  But  the  proper  answer 
is  this  and  other  laws  recognize  them. 

As  to  the  construction  of  the  law.  Two  questions  will  resolve 
our  difficulties — 1.  On  what  real  estate  does  this  act  operate? 
•2.  In  whose  favor?  1.  On  what  estate?  The  words  of  the 
explanatory  act  are  plain.  On  real  estate  which  has  been  pos- 
sessed by  the  first  devisee  in  tail,  and  is  now  the  property  of  the 
next  devisee  in  tail.  It  must,  at  the  time  of  passing  the  act,  have 
been  possessed  by  one  devisee  and  be  then  the  property  of  another. 
If  this  land  do  not  come  within  this  description  the  act  cannot 
operate  upon  it.  It  does  not  come  within  the  description.  Prior 
to  passing  this  act  it  had  not  been  possessed  by  one  devisee  and 
become  the  property  of  another.  William  Young  was  the  first 
person  actually  in  possession  as  devisee  in  tail.  Sarah  Young  was 
the  first  devisee  in-that  line  but  had  not  an  estate  in  possession,  but 
in  remainder,  which  is  diametrically  opposed  to  it.  It  is,  however, 
•contended  that  she  had  a  legal  possession.  The  possession  of  the 
particular  tenant  is,  for  some  purposes,  the  possession  of  the  re- 
mainderman, but  the  legislature,  here,  obviously  contemplate  an 
actual  possession.  The  words  "  been  possessed  "  &c.,  are  legal 

*702 


822  NEW  JERSEY  SUPREME  COURT.      [5 


Den  v.  Robinson. 


and  appropriate  to  it,  and  are  used  in  opposition  to  mere  owner- 
ship or  property  in  this  very  clause.  The  court,  in  Den  v. 
Hamilton,  Penn.  885,  adopt  this  idea.  First  devisee  is  not  ab- 
solutely first  owner,  but  he  who  unites  ownership  and  possession  ;. 
one  alone  will  not  do ;  he  must  have  both.  But  it  is  further  said 
that  if  "  possessor  "  means  what  is  now  contended  for,  it  will  ope- 
rate in  favor  of  a  wrong-doer.  Not  so ;  he  must  hold  in  tail. 
But  the  land  must  also  be  the  property  of  the  next  devisee  in  tail,, 
at  the  passing  of  the  act  or  it  does  not  operate  upon  it.  This  land 
was  not  so.  In  1773  William  conveyed  it  away.  In  1786  it 
did  not  belong  to  him. 

2d  question.  In  whose  favor  will  this  act  operate  ?  Here, 
too,  the  language  is  plain.  It  was  passed  for  the  benefit  of  the 
tenant  in  tail,  not  the  alienee.  1.  The  proviso  is  that  the  person 
holds  in  the  line  of  descent ;  the  enlargement,  then,  was  not 
merely  an*nexed  to  the  land,  and  to  follow  it,  but  to  the  person. 

2.  The  land  must  be  the  property  of  the  next  devisee  in  tail.. 

3.  The  latter  clause  of  the  second  section  prescribes  that  it  shall 
^est  in  the  person  to  whom  the  same  may  descend.     But  it  is  ar- 
gued that  the  alienee  is  within  the  equity  of  the  statute.     We 
do  not  construe  statutes  by  equity,  and,  if  we  did,  he  is  not 
within  it.     The  legislature  never  intended  to  turn  to  a  fee  the- 
estate  of  one  who  had  acquired  the  interest  of  the  tenant  in  tail. 
Such  has  been  the  construction  of  the  court.     Again  it  is  said, 
and  cases  are  cited  to  prove,  that  the  tenant  in  tail,  having  con- 
veyed, by  bargain  and  sale,  granted  a  base  fee,  and  anything 
which  afterwards  may  pass  the  fee  will  establish  the  estate  of  the 
grantee.     This  is  begging  the  question,  taking  for  granted  what 
the  defendant  is  bound  to  prove,  viz.,  that  the  act  does  operate 
to  create  an  estate  in  fee,  which  it  never  does  except  where  the 
land  is  the  property  of  the  tenant  in  tail.     The  last  clause  of  the 
third  section  does  not  impugn  this  doctrine.     It  relates  to  subse- 
quent, not  prior,  cases,  and  the  person  to  whom  first  given  is  tx> 
be  understood,  in  a  qualified  sense,  as  devisee  in  actual  possession- 
Den  v.  Hamilton.     The  result  is  that  the  statute  does  not  apply 
to  the  premises.     It  did  not  change  the  nature  of  the  estate- 
But  if  it  did,  the  lessor  is  unaffected  by  it ;  he  must  recover. 

*703 


2  SOUTH.]  NOVEMBER  TERM,  1819.  823 


Den  ».  Robinson. 


But  it  is  said  there  ought  to  have  been  an  actual  entry.  It  is 
so  in  no  case  in  England  except  to  avoid  a  fine.  It  is  never 
necessary  for  heir  in  tail  to  enter  if  ancestor  has  granted.  In 
New  Jersey  no  such  doctrine  ever  existed.  Bringing  the  eject- 
ment is  sufficient  wherever  the  plaintiff  has  a  right  of  entry. 

But  again,  the  statute  de  donis  is  said  to  be  repealed.  This 
idea  was  almost  scouted  in  Den  v.  Fogg.  But  what  if  it  were 
repealed?  It  was  the  law  when  the  plaintiff's  estate  was  created. 
It  was  in  force  in  1786,  and  until  our  general  repealing  statute, 
and  the  estates  which  grew  out  of  it  are  in  force  and  recognized. 
Besides,  if  we  go  back  to  the  conditional  fee  at  common  law, 
William  Young  had  not  an  absolute  fee  in  1773.  Such  an  es- 
tate would  have  given  him  power  to  alien  after  issue,  but  no  ab- 
solute estate  until  conveyance  and  reconveyance.  And  he  had 
no  heir  when  he  conveyed.  James  Young  was  born  in  1778. 

The  question  of  the  effect  of  a  warranty  contained  in  the  deed 
of  lessor's  ancestor  cannot  be  raised  on  this  special  verdict,  and, 
therefore,  how  far  the  doctrine  of  defendant's  counsel,  in  this  re- 
*gard,  may  be  correct  need  not  here  be  examined,  for  it  is  con- 
ceded that  the  heir  in  tail  is  not  bound  by  the  warranty  of  the 
ancestor  unless  assets  have  descended.  This  special  verdict  does 
not  find  that  assets  descended.  No  inference  can  be  drawn  by 
the  court  from  circumstances  stated,  however  strong  they  may 
be.  The  court  can  only  proceed  on  facts  expressly  found.  5 
Bac.285;  IS  Mod.  628. 

KlRKPATRICK,  C.  J. 

This  is  a  special  verdict  in  ejectment  taken  at  the  Salem  circuit 
in  December,  1817. 

It  finds,  in  substance,  that  James  Mason,  on  the  25th  of 
March,  1755,  devised  the  premises  in  question  to  his  wife,  Mary 
Mason,  to  the  only  proper  use  of  her  and  her  assigns  during  her 
natural  life,  and  after  her  decease  to  his  cousin,  Joseph  Wood,  and 
the  heirs  of  his  body,  lawfully  begotten,  forever  ;  and  for  want  of 
such  heirs,  to  his  cousin,  Sarah  Young,  and  the  heirs  of  her  body, 
lawfully  begotten,  forever.  That  after  the  death  of  the  said  tes- 
tator the  said  Mary  Mason  entered  into  the  said  premises,  and 

*704 


824         '   NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Den  v.  Robinson. 

was  thereof  possessed  until  the  time  of  her  death,  which  was 
sometime  in  the  year  1772.  That  the  said  Joseph  Wood,  after 
the  death  of  the  said  testator,  and  during  the  lifetime  of  the  said 
Mary  Mason,  died  without  issue,  and  that  the  said  Sarah  Young, 
after  the  death  of  the  said  Joseph  Wood,  but  also  during  the 
lifetime  of  the  said  Mary  Mason,  died,  leaving  three  sons  and 
one  daughter,  of  whom  William  was  the  eldest.  That  upon  the 
death  of  the  said  Mary  Mason  the  said  William  entered  into  the 
premises  and  was  thereof  possessed  until  the  20th  of  February, 
1773,  when  he  sold  and  conveyed  the  same  in  fee  to  one  Jona- 
than Bilderback,  and  that  he  afterwards  died,  that  is  to  say,  on 
the  12th  of  March,  1798,  seized  of  a  certain  real  estate  in  the 
county  of  Cumberland,  of  one  hundred  and  thirty  acres  of  land, 
and  leaving  two  sons,  James  and  William,  of  whom  James  was 
the  elder  and  is  the  lessor  of  the  plaintiff.  It  further  finds  the 
deed  of  the  20th  of  February,  1773,  from  William  Young  to 
Jonathan  Bilderback,  in  hcec  verba,  and  then  traces  the  title 
therefrom  down  to  the  present  defendants. 

It  is  admitted,  on  all  hands,  that  Mary  Mason  took  an  estate 
for  life  only  in  the  premises,  by  virtue  of  this  devise,  that  Joseph 
Wood  took  a  vested  remainder  in  fee  tail  general,  expectant  upon 
the  death  of  the  said  Mary  Mason,  and  that  Sarah  *Young  took 
a  like  remainder,  expectant,  both  upon  the  death  of  the  said 
Mary  Mason  and  upon  the  failure  of  heirs  of  the  body  of  the 
said  Joseph  Wood,  with  reversion  to  the  right  heirs  of  the  said 
testator.  It  is  of  course  admitted  that  upon  the  death  of  Joseph 
Wood  without  issue,  in  the  lifetime  of  Mary  Mason,  Sarah 
Young  became  the  next  in  remainder,  and  that,  upon  her  death, 
the  said  remainder  descended  to  her  son,  the  said  William  Young, 
as  heir  in  tail  secundum  formam  doni. 

If  the  plaintiff's  right,  then,  rested  here,  there  could  be  no 
doubt,  for  if  tenant  in  tail  alien  in  fee,  though  the  alienee  may 
lawfully  enter  and  hold  during  the  life  of  the  tenant  in  tail,  yet, 
if  he  hold  over  after  his  death  against  the  issue  in  tail,  the  es- 
tate of  such  alienee  so  holden  over  may,  at  any  time,  be  defeated 
by  such  issue. 

The  defendants,  however,  have  raised  up  a  defence  and  have 

*705 


2  SOUTH.]          NOVEMBER  TERM,  1819.  825 


Den  r.  Robinson. 


placed  it  upon  four  distinct  grounds.  The  first  three  of  these, 
in  the  order  in  which  I  shall  take  them,  I  shall  mention  in  a 
cursory  manner  only,  making  an  observation  or  two  upon  each, 
and  then  proceed  to  the  last,  which  lies  at  the  foundation  of  the 
phiintiff's  right. 

1.  It  is  said  that  if  tenant  in  tail  alien  in  fee,  the  estate  of  the 
alienee  can  be  defeated  only  by  the  entry  of  the  issue  in  tail,  that 
therefore  an  actual  entry  must  be  made  to  complete  his  title  and 
so  proved  to  have  been  done  at  the  trial  to  enable  him  to  sustain 
an  action  of  ejectment,  and  that  the  confession  of  lease,  entry 
and  ouster  will  not  supply  the  place  of  such  proof,  and  such 
entry  is  not  here  found  by  this  verdict. 

When  the  essence  of  conveyances  consisted  in  the  actual  livery 
of  the  seizin  of  the  land  in  the  presence  of  the  neighborhood  or 
of  special  witnesses,  and  the  deed  of  feoffment  was  considered 
but  as  a  mere  memorandum  to  keep  that  transaction  in  memory, 
it  was  holden  in  the  wisdom  of  our  ancient  law  that  if  one 
would  come  in  upon  the  feoffee,  upon  condition  broken,  or  upon 
the  abater  on  the  death  of  the  ancestor,  or  in  other  cases  where 
the  right  arose  by  operation  of  law,  he  must  come  in  by  public 
entry,  in  the  presence  of  witnesses,  also ;  that  the  defeasance  of 
the  estate  must  be  by  an  act  of  as  great  notoriety  as  the  creation 
of  it  had  been.  But  when,  afterwards,  for  the  greater  conveni- 
ence, conveyances  to  uses  crept  in  and  took  the  place  of  feoff- 
ments  when  the  legal  estate  remained  in  the  bargainer,  and  *the 
use  only  passed  to  the  bargainee,  it  was  impossible  either  that 
this  public  livery  should  be  made,  or  that  it  should  be  defeated 
by  a  public  entry,  for  a  mere  use  was  insusceptible  of  either  the 
one  or  the  other.  And  though,  afterwards,  the  statute  of  uses 
annexed  the  possession  to  the  use,  yet  still  the  use  Mras  the  prin- 
cipal and  the  possession  the  accident.  The  creation  of  the  use 
was  the  creation  of  the  estate ;  and  the  statute,  by  a  sort  of  legal 
magic,  transferred  the  possession  without  any  public  act  in  jxti*. 
Hence,  public  entries  to  defeat  estates  ceased  with  public  lm-rk>> 
to  create  them.  An  entry  to  defeat  an  estate  now  would  be  jn-t 
as  extraordinary  as  a  livery  of  seizin  to  create  one.  Every  man 
who  has  right  of  entry  makes  his  lease  to  try  his  title  without 

*706 


826  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Robinson. 


any  such  formality,  (a)  The  confession  of  lease,  entry  and 
ouster,  therefore,  by  the  defendant  in  the  common  rule  is,  in  all 
cases,  sufficient  in  actions  of  ejectment,  without  proof  of  any 
actual  entry,  to  defeat  a  precedent  estate.  This  is  so  in  England 
except  in  the  case  of  a  fine  only,  where  the  actual  entry  is  ex- 
pressly required  by  the  statute ;  but  here  fines  are  abolished  as 
a  mode  of  conveyance.  So  far,  therefore,  as  I  can  now  perceive 
there  is  no  exception  to  the  rule.  I  do  not  now  speak  of  entries 
to  avoid  the  statutes  of  limitation.  That  is  another  subject. 

2.  It  is  said,  in  the  second  place,  that  the  statute  de  donis  con- 
•ditionalibus  having  been  declared  by  legislative  act  to  be  no 
longer  in  force  hi  this  state,  the  plaintiff  cannot  come  in  and 
make  title  under  it. 

William  Young,  the  father  of  the  plaintiff,  who  is  admitted 
to  have  been  seized  in  tail,  died  on  the  12th  of  March,  1798 ; 
and  the  act  of  the  legislature  declaring  the  statute  de  donis  to  be 
no  longer  in  force,  was  passed  on  the  13th  of  June,  1799.  The 
estate,  therefore,  if  it  passed  at  all  to  the  plaintiff,  passed  before 
the  date  of  that  act ;  and  certainly  it  cannot  be  said  that  the  re- 
pealing of  an  act,  or  the  rendering  it  for  the  future  inoperative, 
will  destroy  an  estate  already  vested  under  its  authority.  (6) 

3.  It  is  said,  in  the  third  place,  that  the  deed  of  conveyance 
from  William  Young  to  Jonathan  Bilderback  contains  a  cove- 
nant of  warranty,  binding  himself  and  his  heirs  to  warrant  and 
defend  the  said  land  against  himself,  the  said  William  Young, 
and  all  claiming  under  him ;  that  the  plaintiff  is  the  heir  of  the 
said  William  Young,  and  is,  therefore,  barred  by  the  said  cove*- 
nant ;  and  especially  so,  as  it  is  found  by  the  verdict  that  the  said 
William  died  seized  of  certain   other  lands  of  an  estate  de- 
scendible. 

Warranties  which  descend  upon  the  heir,  and  which  may  be 
taken  advantage  of  by  writ  of  warrantia  chaiixe,  or  by  voucher 

(a)  Farley  v.  Craig,  6  Hal.  278. 

(b)  Wright  v.  Scott,  4  Wash.  G.  G.  16;  Den,  Berdan  v.  Van  Riper,  1  Harr. 
7 ;  Den,  Spachius  v.  Spachius,  1  Harr.  172 ;   Den,  James  v.  Dubois,  1  Harr. 
286;  The  Boston  Franklinite  Co.   v.  Condit,  4  G.  E.  Or.  894;    Van  Note  v. 
Downey,  4  Dutch.  219. 

*707 


2  SOUTH.]  NOVEMBER  TERM,  1819.  827 


Deo  v,  Robinson. 


or  rebutter,  we  are  told  by  Littleton  may  be  annexed  to  estates  of 
freehold  or  to  estates  of  inheritance,  which  pass  by  livery,  and 
also  to  incorporeal  hereditaments  which  lie  in  grant ;  bid  that  they 
cannot  be  annexed  to  mere  chattels,  whether  they  be  real  or  personal. 
And  ranch  less  can  they  be  annexed  to  interests  which  are  alto- 
gether of  an  equitable  nature.  Warranties,  therefore,  upon  the 
sale  of  such  chattels,  or  upon  the  passing  of  such  equitable  in- 
terests, must  be  taken  advantage  of  by  action  of  covenant  and 
not  otherwise.  Can  a  warranty,  then,  contained  in  a  deed  of 
bargain  and  sale  which  conveys  the  use  only  (for  the  statute 
annexes  the  possession)  be  considered  as  a  warranty  annexed  to 
and  descending  with  the  land  in  such  way  as  that  the  assigns  of 
the  bargainee  can  take  advantage  of  it  by  way  of  rebvMer  ;  and 
particularly  in  an  action  of  ejectment?  Or  are  they  not  rather 
to  be  considered  merely  as  personal  covenants,  and  to  be  taken 
advantage  of  by  action  of  covenant  only  ?  But  without  saying 
anything  upon  this  subject,  it  is  enough  to  observe,  at  present 
(for  it  was  desired  by  the  counsel  to  speak  to  it  again),  that  a 
warranty  by  tenant  in  tail,  without  assets  descending,  does  not 
bind  the  heir,  (a)  And  here,  though  William  Young  is  found 
to  have  died  seized  of  certain  real  estate,  yet  it  is  not  found  that 
such  real  estate  is  of  the  value  of  the  lands  entailed,  or  that 
they  descended  to  the  plaintiff.  Upon  a  mere  presumption,  then, 
and  a  presumption,  too,  which  has  so  little  to  support  it,  we  can- 
not say  the  plaintiff  is  barred.  And  especially  so  as  the  cove- 
nant will  still  be  open  against  him  in  the  hands  of  him  who  has 
the  lawful  right. 

4.  But,  in  the  fourth  place,  the  principal  ground  of  defence  is 
still  to  be  considered.  It  is  said  there  are  certain  statutory  pro- 
visions respecting  estates  tail  which  govern  this  case  and  take  it 
out  of  the  rules  of  the  ancient  law. 

There  was  an  act.  passed  on  the  26th  of  August,  1784,  which 
has  for  its  object,  among  other  things,  the  limitation  of  estates 
tail.  The  material  words  of  this  act  are  these  :  "  Be  it  enacted, 
That  all  lands  heretofore  devised  in  tail  which  have  passed 

(a)  See  Nix.  Dig.  146  §  16. 


828  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Kobinson. 


*through  one  descent  since  the  death  of  the  testator,  and  are  now 
in  the  second  or  more  remote  descent  from  the  testator,  shall  be 
•deemed  to  be  the  proper  estate  in  fee  simple  of  the  present  pos- 
sessor, provided  he  holdeth  the  same  in  the  line  of  descent  men- 
tioned in  such  devise." 

"  That  all  devises  of  land  heretofore  made  in  tail  which  have 
not  already  passed  through  one  descent,  and  also  all  devises  which 
shall  hereafter  be  made  in  tail,  shall  be  deemed  to  entitle  the  per- 
son to  whom  the  same  may  descend,  to  all  the  estate  therein, 
which  the  testator  had  or  could  devise,"  and — 

"  That  no  eutailment  of  lands  shall  continue  to  entail  the  same, 
in  any  case  whatever,  longer  than  the  life  of  the  person  to  whom 
the  same  hath  been,  or  shall  be,  first  devised  by  such  entailment." 

There  was  another  act  passed  on  the  23d  of  March,  1786,  to 
explain  this  act,  which  declares  that  the  words  "  passed  through 
one  descent  since  the  death  of  the  testator,  and  are  now  in  the 
second  or  more  remote  descent  from  the  testator,"  in  the  first  act, 
shall  be  understood  to  mean  "  been  possessed  by  the  first  devisee 
in  tail,  and  are  now  the  property  of  the  next  devisee  in  tail,  in 
the  line  mentioned  in  the  devise  under  which  they  claim,"  and 
that  the  words  "  the  line  of  descent "  shall  be  understood  to 
mean  "  the  line  of  entailment."  This  explanation  touches  the 
first  clause  of  the  act  only ;  the  second  and  third  clauses  of  it, 
as  above  recited,  remain  as  at  first,  wholly  untouched  by  this 
explanation. 

There  is  certainly  no  inconsiderable  degree  of  confusion  in  the 
phraseology  used  in  this  explanatory  act.  Perhaps,  however,  by 
a  little  consideration,  we  may  be  able  to  give  it  a  construction 
which  will  carry  into  effect  the  intention  of  the  legislature. 

The  first  act  is  entitled  "  An  act  to  limit  estates  tail."  The 
evil  complained  of  in  the  preamble  is  that  "  devises  are  sometimes 
made  in  tail  without  limitation  of  time,  whereby  the  heirs  are 
put  to  great  expense  in  suing  out  recoveries  in  order  to  dock  such 
entails."  This  is  the  evil  it  proposes  to  remedy.  It  does  not 
profess  to  limit  the  entailment  in  the  hands  of  the  immediate  de- 
visee, but  in  the  hands  of  the  heir  only.  There  might  be  suffi- 
cient reasons  why  the  estate  should  be  limited  to  the  hands  of  the 

*708 


2  SOUTH.]  NOVEMBER  TERM,  1819.  829 


Den  v.  Robinson. 


devisee,  with  whom  the  testator  was  acquainted,  and  whose  dis- 
cretion .and  prudence  he  did  not  think  proper  to  trust ;  but  when 
it  had  passed  into  the  hands  of  the  heir,  whom  he  could  *not  cer- 
tainly know,  and  whose  prudence  he  could,  therefore,  have  no 
reason  to  suspect,  it  was  thought  the  genius  of  our  government 
and  the  public  good  required  that  it  should  be  unfettered  and 
subjected  to  alienation,  like  other  estates. 

This  seems  to  have  been  the  view  of  the  legislature,  and  to 
have  been  pretty  clearly  expressed  in  the  first  act.  The  only 
doubt  that  arose  or  could  arise  upon  that  act,  and  the  only  doubt 
pretended  to  be  explained,  was  upon  the  words  "  passed  through 
one  descent  since  the  death  of  the  testator,  and  is  now  in  the 
second  or  more  remote  descent  from  the  testator."  And  the 
doubt  was,  whether  upon  these  words,  if  an  estate  tail  had  been 
devised  to  A,  and  upon  his  death  had  descended  to  B,  it  had 
then  passed  through,  one  descent,  and  was  in  the  second  or  more 
remote  descent ;  or  whether  B's  life  also  must  have  been  termi- 
nated and  the  estate  must  have  descended  to  his  son  C,  in  order 
to  put  it  in  the  second  descent.  And,  indeed,  this  mode  of  ex- 
pression was  certainly  a  very  doubtful  one,  and  one  that  required 
explanation.  In  a  strict  sense,  passing  through  the  hands  of 
the  immediate  devisee  could  not  be  called  passing  through  a 
descent,  and  descending  from  the  devisee  into  the  hands  of  the 
heir  could  not  put  it  in  the  second  descent,  for  there  had  then 
been  but  one  descent  cast.  To  explain  this  doubt,  and  to  declare 
explicitly  that  when  the  lands  had  passed  by  descent  from  the 
devisee  to  the  heir  the  limitation  should  cease,  was  the  only  de- 
sign of  the  explanatory  act.  It  does  not  profess  to  change  the 
object  of  the  first  act  or  to  introduce  a  new  principle  not  con- 
templated by  it,  but  merely  to  explain  the  meaning  of  it ;  to 
declare  the  intention  of  the  legislature  in  the  words  they  had 
used.  In  order  to  accomplish  this  design,  and  at  the  same  time 
to  preserve  the  consistency  of  the  act  with  itself  and  with  that 
which  it  is  intended  to  explain,  we  must  take  some  latitude  in 
the  construction  of  the  words  of  it.  We  must  understand  the 
words  first  devisee  in  tail  npt  absolutely  but  relatively  only ;  not 
as  the  first  devisee  in  tail  named  in  the  will,  but  as  the  propoxitus 

*709 


830  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Den  v.  Robinson. 


or  stock  from  which  the  issue  in  tail  is  to  proceed ;  so  that  if 
there  be  a  devise  to  A  in  tail,  with  remainder  to  B  in  tail,  both 
A  and  B  are  to  be  considered  as  first  devisees  in  relation  to  their 
respective  issues,  they  being  distinct  stocks  from  which  distinct 
issues  and  distinct  lines  of  entailment  are  to  proceed.  So,  too, 
we  are  to  understand  the  words  next  devisee  not  in  a  strict  and 
technical  sense,  but  in  the  sense  *in  which  the  word  devisee  is 
sometimes  used  in  common  discourse ;  not  as  one  named  in  the 
will  and  taking  by  devise,  strictly  speaking,  but  as  one  taking 
as  heir,  according  to  the  special  limitation  contained  in  the  will 
upon  the  death  of  such  first  devisee. 

This  construction  is  supported  by  the  consideration  that  if  we 
take  the  words  first  and  next  devisee  in  their  appropriate  and 
technical  sense,  meaning  by  first  the  person  to  whom  the  estate 
is  first  given  by  the  will,  and  by  next  the  person  to  whom  the 
remainder  is  given  in  tail,  the  first  clause  of  the  act  which  ope- 
rates upon  anterior  devises  would  not  unfetter  the  estate  in  the 
hands  of  the  heir  at  all,  but  only  in  the  hands  of  the  remainder- 
man, which  would  be  in  direct  contrariety  to  the  manifest  inten- 
tion of  the  legislature ;  the  explanation  of  the  act  would  nullify 
the  act  itself,  which  can  never  be  admitted.  This  construction, 
too,  makes  the  first  clause  of  the  act  speak  the  same  language 
respecting  anterior  devises  which  the  next  clause  speaks  respect- 
ing subsequent  devises.  The  object  of  both  the  one  and  the 
other  is  to  say  that  in  the  hands  of  the  immediate  devisee  the 
entailment  shall  continue,  but  in  the  hands  of  the  heir  it  shall 
cease. 

This,  too,  was  the  construction  put  upon  the  words  first  devisee 
in  the  case  of  Den  v.  Fogg,  in  September  term,  1811.  In  that 
case  there  was  a  devise  made  after  the  passing  the  act  to  A  in 
tail  general,  with  remainder  to  B  in  tail  male,  and  it  was  held 
that  B,  coming  in  as  a  remainderman,  should  not  take  the  fee  as 
next  devisee,  but  that  he  should  be  considered,  himself,  as  a  first 
devisee,  as  the  person  to  whom  the  estate  had  first  been  devised,  in 
relation  to  the  line  of  entailment  proceeding  from  himself;  and, 
in  that  case,  B  having  had  no  male  issue,  though  he  had  issue 
female,  seven  daughters,  yet  the  estate  was  adjudged  to  revert  to 

*710 


2  SOUTH.]          NOVEMBER  TERM,  1819.  831 


Den  t.  Robinson. 


the  right  heirs  of  the  donor.  And  the  judgment  rendered  in 
that  case,  as  I  have '  been  informed,  was  afterwards  affirmed  in 
the  court  of  errors. 

If  this  be  so,  then,  in  the  case  before  us,  both  Joseph  Wood 
and  Sarah  Young  were  first  devisees  in  tail  in  relation  to  their 
respective  issues ;  and  William  Young,  the  son  of  Sarah,  who 
took  as  heir  in  tail  upon  the  death  of  his  mother,  was  the  next 
devisee  in  tail.  And  if  William  Young  had  continued  to  hold 
the  lands  until  the  passing  of  the  act,  if  they  had  t)ien  been  his 
property,  as  next  devisee,  the  estate  would  have  been  converted 
into  *a  fee  simple  in  his  hands ;  but  having,  before  that  time, 
sold  and  conveyed  them  to  Bilderback,  so  that  they  were  not 
then  his  property,  as  next  devisee,  and  of  course  not  within  the 
words  of  the  act,  they  could  not  be  so  converted  ;  and  Bilder- 
back having  no  pretence  to  be  a  devisee,  or  to  hold  in  the  line  of 
entailment  mentioned  in  the  devise,  this  first  clause  of  the  act 
could  have  no  operation  at  all  upon  the  estate  in  his  hands.  I 
say  it  could  have  no  operation  at  all  unless,  indeed,  it  shouid  be 
said  that  Bilderback,  being  the  alienee,  and  standing  in  the  place 
of  the  next  devisee  described  in  the  act  (that  is,  of  William 
Young),  he  should  take  all  the  benefit  under  the  act  that  tfie  next 
devisee  himself  would  have  taken.  But  as  this  would  be  a  forced 
construction,  so  it  would  put  an  end  to  the  controversy,  for  then 
Bilderback  would  have  the  fee  under  this  first  clause. 

The  case,  therefore,  as  it  then  existed,  was  not,  according  to 
my  view  of  it,  in  any  way  affected  by  this  first  clause  of  the  act. 
The  lands  were  not  in  the  situation  described  in  that  clause ;  the 
case  was  not  one  upon  which  that  clause  was  intended  to  operate. 

In  opposition  to  this  construction,  however,  it  is  said  that  these 
lands  had  never  been  possessed  by  Sarah  Young,  and  that  there- 
fore she  could  not  be  the  first  devisee  intended  by  this  explana- 
tory act,  but  that  they  had  been  possessed  by  William  Young, 
her  son,  who  came  in  as  heir  upon  her  death,  under  the  limita- 
tions of  the  will,  and  that  therefore  he  must  be  considered  as  the 
first  devisee  in  this  case ;  and  that  upon  his  death,  which  was 
after  the  passing  of  the  act,  the  lands  descended  to  his  son, 
James  Young,  the  lessor  of  the  plaintiff",  in  fee  simple. 

*711 


832  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Robinson. 


In  answer  to  this  it  may  be  said  in  the  first  place  that  the  pos- 
session of  the  tenant  of  the  particular  estate  is,  in  one  sense,  the 
possession  of  the  remainderman  ;  that  Mary  Mason's  possession 
was  Sarah  Young's  possession ;  that  when  this  explanatory  act 
speaks  of  the  lands  being  possessed  by  the  first  devisee,  it  can  ra- 
tionally mean  nothing  else  than  such  a  possession  as  would  be 
sufficient  to  pass  the  estate  by  descent  and  save  the  inheritance, 
for  in  any  other  view,  whether  the  first  devisee  were  possessed  or 
not  would  be  wholly  immaterial  as  to  the  object  of  this  law,  and 
such  a  possession  Sarah  Young  unquestionably  had. 

But,  in  the  second  place,  even  if  this  were  not  so,  the  only 
*consequence  would  be  that  this  particular  case  is  not  within  this 
first  clause  of  the  act.  For  when  that  clause  speaks  of  lands 
which  have  been  possessed  by  the  first  devisee,  shall  we  say  it 
means  lands  which  have  never  been  so  possessed  ?  or  shall  we 
pervert  the  whole  meaning  of  language  and  say  that  the  heir  who- 
was  not  born  at  the  time  of  the  making  of  the  will,  and  who 
comes  in  by  descent  after  the  death  of  the  first  devisee,  is  himself 
the  first  devisee  ?  Even  that  he  should  be  called  the  second  or 
next  devisee  is  making  a  very  liberal  allowance  for  the  colloquial 
application  of  words,  but  to  call  him  the  first  would  be  a  total 
abandonment  of  their  meaning,  both  in  colloquial  and  technical 
discourse.  Surely,  then,  they  cannot  be  thus  distorted  to  meet  a 
favorite  case  or  support  a  hasty  opinion.  Thoy  must  receive 
their  construction  ;  their  meaning  must  be  fixed,  and  when  fixed, 
must  prevail  in  all  cases. 

There  is  a  way  of  arguing,  or  rather  of  talking,  upon  subjects 
of  this  kind,  which  sometimes  prevails,  but  which,  notwithstand- 
ing, is  far  from  being  satisfactory.  We  frequently  hear  it  said 
that  taking  the  act  altogether  it  means  so  and  so,  always  what  the 
speaker  would  have  it  mean ;  and  yet,  when  we  come  to  analyze 
it  and  examine  its  several  parts,  neither  any  one  clause,  nor  all 
of  them  taken  in  connection,  as  they  always  must  be,  can,  upon 
any  rational  construction,  be  made  to  mean  any  such  thing.  This 
is  a  mode  of  argument,  or  rather  of  carrying  a  point  without 
argument,  which  it  is  impossible  to  refute  or  to  stand  against,  and 
yet  it  is  altogether  hollow  at  bottom.  We  have  no  right  to  say 

*712 


2  SOUTH.]          NOVEMBER  TERM,  1819.  833 


Den  r.  Robinson. 


the  legislature  meant  what  they  have  not  expressed,  and  much 
less  the  very  contrary  of  what  they  have  expressed. 

Upon  the  whole,  then,  I  conclude  that  this  first  clause  of  the 
act  does  not  at  all  bear  upon  our  case,  or  give  any  rule  concern- 
ing it. 

And,  as  to  the  second  clause,  that,  so  far  as  it  relates  to  ante- 
rior devisees,  gives  the  fee  to  those  only  who  should  come  in  by 
descent  after  the  passing  of  the  act,  to  which  neither  William 
Young  nor  Bilderback  can  make  the  smallest  pretence.  The 
first  and  second  clauses  state  particular  cases  in  which  the  estate 
shall  be  converted  into  a  fee  simple,  and  they  touch  those  cases 
only,  but  the  third  is  more  general ;  it  comprehends  all  cases  of 
entailment  whatsoever.  If  the  entailment  had  been  created  be- 
fore the  passing  of  the  act,  and  the  life  of  the  first  devisee,  as 
*above  understood,  was  then  extinct,  it  from  that  moment  ceased  ; 
if  it  should  be  created  after  the  passing  of  the  act,  or  if  the  life  of 
such  first  devisee  were  not  then  extinct,  it  should,  upon  such  life 
becoming  extinct,  immediately  cease.  The  first  two  clauses  di- 
rect in  whose  hands  the  estate  shall  become  a  fee  simple,  the  last 
cuts  off  the  entailment,  destroys  the  limitations,  unfetters  the 
estate  in  whosoever  hands  the  same  may  be  lawfully  found. 

But  taking  this  for  granted,  what  effect  will  it  have  in  this 
case,  or,  in  other  words,  in  whose  hands  did  the  act  find  this 
estate  at  the  time  of  the  passing  of  it? 

The  plaintiff  has  argued  this  question  as  if  the  alienation  by 
the  tenant  in  tail,  though  purporting  to  be  in  fee,  passed  an  es- 
tate for  the  life  of  the  tenant  in  tail,  only,  putting  the  remainder, 
if  I  may  so  call  it,  of  such  estate  tail  in  abeyance  for  the  benefit 
of  the  issue,  and  that,  therefore,  this  act,  if  it  operates  upon  this 
estate  at  all,  must  operate  upon  it  as  it  rests  in  abeyance,  must 
unfetter  it  for  the  benefit  of  the  heir  and  render  it  a  fee  simple 
in  his  hands,  and  not  in  the  hands  of  such  alienee. 

But  I  believe  this  doctrine  cannot  be  maintained.  A  tenant 
in  tail  has  an  estate  of  inheritance  in  himself.  He  had  it  before 
the  statute  de  donis  under  the  name  of  a  conditional  fee,  and 
that  statute  makes  no  alteration  in  it  in  that  respect ;  it  only 
restrains  the  alienation  of  it  to  the  disinherison  of  the  issue  in 
*713  53 


834  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Robinson. 


tail.  He  has  the  estate  in  him,  and  as  the  power  of  alienation 
is  an  incident  inseparable  from  it  he  may  alien  it  by  any  of  the 
usual  modes  of  conveyance  and  vest  it  in  the  alienee  as  com- 
pletely as  he  himself  had  it.  In  the  hands  of  the  alienee,  in- 
deed, it  is  not  called  an  estate  tail  but  a  base  fee,  a  fee  defeasible 
by  the  issue  in  tail.  And  though  such  alienation,  if  it  be  by 
feoffrnent  with  livery  of  seizin  or  by  fine  of  record  with  procla- 
mations, will  toll  the  entry  of  the  issue  and  put  him  to  his/or- 
medon  in  the  descender,  yet,  even  in  that  case,  it  has  never  been 
considered  as  a  violation  of  the  statute  de  donis,  and  much  less 
if  it  be  by  bargain  and  sale  or  other  conveyance  which  has  its 
operation  by  the  statute  of  uses  and  which  puts  him  to  entry 
only. 

Since,  then,  the  tenant  in  tail  has  an  estate  of  inheritance,  since 
the  power  of  alienation  is  inseparable  from  such  an  estate,  and 
since  such  an  alienation,  though  it  put  the  issue  to  his  formedon 
or  to  his  entry,  is  no  violation  of  the  statute,  it  follows  that  an 
esfeate  created  by  such  alienation  does  not  determine  by  the  *death 
of  the  tenant  in  tail  but  remains  until  defeated  by  the  heir.  This 
is  the  doctrine  laid  down  in  the  case  of  Michal  v.  Clark,  in  1702 
(SaHc.  619  and  passim),  and  has  been  recognized  as  the  law  in 
every  succeeding  case  upon  that  subject. 

If  the  estate  ot  such  alienee  were  for  the  life  of  the  tenant  in 
tail  only,  no  unfettering  of  it  from  its  limitations  could  extend 
it  in  his  hands  beyond  that  period  without  a  new  conveyance ;  it 
would  still  be  an  estate  for  life,  and  to  whomsoever  it  might 
afterwards  go  it  could  not  be  retained  by  him.  But  being  an 
estate  in  fee,  that  is,  an  estate  of  inheritance,  not  terminating 
upon  the  death  of  the  tenant  in  tail  but  subject  to  the  limitations 
of  the  first  gift  only,  if  such  limitations  be  moved  out  of  the 
way  it  becomes  absolute  and  is  no  longer  defeasible.  There  is 
nothing  to  defeat  it. 

Hence,  we  find  that  if  tenant  in  tail  sell  to  one  and  his  heirs 
and  afterwards  suffer  a  fine  or  common  recovery  with  a  declara- 
tion of  uses  to  another,  this  fine  or  recovery,  if  good  in  itself, 
shall  operate  to  the  benefit  of  the  bargainee.  It  unfetters  the 
estate  which  is  already  in  his  hands.  Same  case  Michal  v.  Clark  ; 

*714 


2  SOUTH.]  NOVEMBER  TERM,  1819.  835 


Den  v.  Robinson. 


Tyrrd  v.  Mead  et  al.,  3  Burr.  1703;  Stapilton  v.  Stapilton,  1 
Atk.  8. 

So,  if  a  tenant  in  tail  confess  a  judgment  or  statute  or  make  a 
mortgage  and  afterwards  suffer  a  recovery,  which  bars  the  entail, 
such  recovery  lets  in  the  encumbrance.  And  so,  also,  if  there  be 
tenant  in  tail  special,  as  to  the  heirs  of  his  body,  by  his  present 
wife,  with  remainder  to  himself  in  fee,  and  he  alien,  and  then 
the  issue  fail,  the  failure  of  issue  unfetters  the  estate  and  it  shall 
be  indefeasible  in  the  hands  of  the  alienee,  and  shall  not  pass  in 
the  remainder. 

We  may  fairly  conclude,  then,  that  if  tenant  in  tail  'alien 
or  encumber  the  estate,  and  afterwards  remove  the  limitation  or 
bar  the  entail,  it  shall  enure  to  the  benefit  of  the  alienee  or  en- 
cumbrancer, because  he  alone  has  the  estate  upon  which  it  can 
operate,  (a) 

The  notion,  therefore,  that  this  estate  tail  was  in  abeyance,  and 
tljat  the  act  operated  upon  it  in  that  situation,  and  unfettered  it 
for  the  benefit  of  the  issue,  is  without  foundation. 

The  act,  if  I .  have  taken  a  correct  view  of  it,  operates  upon 
the  estate  without  respect  to  the  person  in  whose  hands  it  may  be 
found ;  it  destroys  the  limitation  ;  it  declares  the  entailment  shall 
not  continue.  Well,  then,  if  it  does  so  operate,  and  if  it  *operates 
upon  this  estate  at  all,  it  must  operate  upon  it  in  the  hands  of  the 
defendant,  for  it  exists  nowhere  else ;  it  must  destroy  the  limitation 
and  bar  the  heir  in  tail  in  their  favor.  By  what  right  shall  the 
heir  come  in  ?  By  the  entailment  ?  It  shall  not  continue  to  en- 
tail tiie  same  longer  than  the  life  of  the  person  to  whom  the  land 
was  first  given,  that  is,  the  life  of  the  donee  in  tail,  the  propositus, 
the  person  from  whom  the  line  of  entailment  was  to  begin  and 
from  whom  the  issue  was  to  proceed ;  and  in  this  case  that  per- 
son was  Sarah  Young,  who  was  dead  long  before  the  passing  of 
the  act. 

In  considering  this  question  I  have  taken  no  notice  of  the  case 
of  Hinchman  v.  Clark  et  al.,  cited  from  Coxe's  reports,  because, 
though  the  same  question  was  raised  by  the  counsel  there  it  was 

(a)  See  Porch  v.  Fries,  S  C.  E.  Or.  SOS;  Moore  v.  RoJce,  S  Dutch.  574;  Vree- 
land  v.  Slauvelt,  S  C.  E.  Or.  483. 

*715 


836  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Bobinson. 


not  decided  by  the  court.  The  chief-justice,  Kinsey,  in  his  very 
able  and  handsome  exposition  of  the  case,  places  the  stress  of  the 
argument  upon  the  very  circumstance  that  the  defendant  ex- 
pressly and  publicly  purchased  the  land  for  the  life  of  the  tenant 
in  tail  only,  and  no  longer,  so  that  the  decision  there  has  no  bear- 
ing upon  this  case. 

Upon  the  whole  matter,  then,  I  am  of  opinion  that  the  postea 
should  be  delivered  to  the  defendant. 

ROSSELL,  J.,  united  in  this  opinion. 

SOTTTHAKD,  J. 

In  the  result  of  the  argument  of  the  chief-justice  I  entirely 
concur.  I  differ  somewhat  as  to  the  operation  of  the  first  clause 
and  the  enlargement  of  the  estate. 

The  object  of  the  statute  was  so  to  order  estates  that  entails 
should  not  last  longer  than  the  life  of  the  first  taker.  It  often 
happened  that  a  testator  was  willing  to  benefit  an  individual, 
perhaps  his  child,  by  the  use  of  his  estate  during  that  individual's 
life,  but  had  not  sufficient  confidence  in  him  to  entrust  the  who4e 
estate  to  him,  lest  he  should  squander  it  and  thus  it  should  never 
reach  his  heirs,  whom  the  testator  designed  ultimately  and  prin- 
cipally to  benefit.  This  object  was  laudable,  but  it  was  against 
the  public  policy  to  continue  lands  by  legal  restraints  for  ages  in 
the  same  family.  The  legislature,  therefore,  intended  to  unfetter 
and  release  it  after  the  life  of  him  to  whom  it  was  first  given — 
to  free  the  land — but  to  free  it  for  the  benefit  of  the  heir  to  whom 
the  testator  directed  it  to  go.  The  two  objects  are  always  to  be 
united,  otherwise  it  would  happen  in  *rnany  cases  that  the  estate 
would,  in  effect,  be  a  fee  in  the  hands  of  the  first  devisee.  He 
sells  ;  if  it  be  enlarged  in  the  hands  of  purchaser,  the  second  de- 
visee or  heir  is  altogether  defeated,  and  the  first  has  really  sold 
a  fee.  Whether,  therefore,  this  estate  was  enlarged  for  the  bene- 
fit of  Bilderback  depends  on  the  question  who  was  first  devisee 
or  taker.  If  Sarah  Young,  then  William  is  the  second,  and  the 
estate  was  enlarged  for  his  benefit,  and,  of  course,  for  the  benefit 
of  his  alienee.  If  William,  the  statute  cannot  operate  until  the 

*716 


SOUTH.]          'NjQVEMBEK  TERM,  1819.  837 


Den  r.  Robinson. 


•estate  comes  to  his  heir  ;  his  purchaser  can  receive  no  benefit  from 
the  enlargement,  and  the  lessor  must  recover,  for  his  father  could 
not,  by  an  improper  sale,  take  the  estate  from  the  heir  in  tail. 

Who,  then,  is  the  first  devisee  ?  It  is  a  case  of  lands  devised 
in  tail  before  the  statute ;  if,  therefore,  it  had  passed  through  one 
and  was  then  in  the  second  or  more  remote  descent,  and  the 
holder  was  in  the  line  of  descent,  it  became  a  fee.  Den  v.  Fogg 
teaches  us  that  this  second  in  descent  is  the  second  in  the  same 
line,  and  if  two  or  more  lines  are  created,  and  all  except  the  last 
fail  without  enjoying  the  land,  it  must  be  the  second  in  that 
line.  Sarah  Young  is  not,  then,  a  second  devisee ;  she  is  the  first 
in  the  line  in  which  she  is  to  take  ;  it  commences  with  her.  If 
she  had  been  living  at  Mary  Mason's  death  she  would  have 
entered  into  actual  possession,  not  as  second  but  as  first  devisee ; 
not  by  right  derived  through  another,  but  by  original  gift. 
Such  being  her  right  after  Joseph  Wood's  death,  she  had  neces- 
sarily, until  her  own  death,  a  possession  of  the  estate  in  virtue 
of  Mary  Mason's  possession.  The  remainder  was  neither  con- 
tingent nor  in  abeyance.  William  Young,  then,  when  he  entered 
into  actual  possession  of  the  estate,  did  it  not  as  first  but  second 
in  the  line ;  he  did  not  take  by  original  grant,  but  derived  his 
right  by  descent  through  his  mother.  When  he  sold,  with  war- 
ranty, his  deed  conveyed  such  right  as  he  had,  and  no  other.  It 
conveyed  his  right  as  tenant  in  tail.  It  placed  Bilderback  in  the 
enjoyment  of  all  his  rights.  Bilderback's  possession  was  his 
possession ;  Bilderback's  rights  his  rights ;  and  at  his  death  his 
heirs  had  a  right  to  enter  as  if  he  had  not  conveyed.  At  the 
passing  of  the  act  Bilderback  virtually  stood  in  his  place.  The 
land  was  held  by  virtue  of,  and  to  the  extent,  and  no  more,  of  the 
rights  of  the  second  person  in  the  line  of  entailment.  It  was 
land,  therefore,  on  which  this  clause  of  the  statute  fairly  ope- 
rated. William  *  Young  united,  in  himself,  all  the  requirem<  nts 
of  the  statute.  He  was  the  second  devisee,  or  possessor,  in  the 
line  of  eutailment.  And,  when  to  this  is  added  the  express  pro- 
vision that  no. devise  shall  entail  longer  than  the  life  of  the 
person  to  whom  it  was  first  given,  I  do  not  perceive  how  it  \va.s 

*717 


838  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Harker  v.  Christy. 

possible  to  continue  until  it  reached  the  lessor,  the  third  in  the 
line.  The  estate  must  have  been  unfettered  in  William's  life. 

If  this  be  not  so  I  am  at  a  loss  to  see  when  and  how  this 
statute  is  ever  to  affect  this  land  at  all.  It  must  go  quit  from  all 
restraint.  There  is  no  clause  of  the  act  which  applies  to  it.  The 
moment  the  law  passed  I  consider  the  estate  in  this  land  as  be- 
coming a  fee  for  William's  benefit.  But  he  had  sold  not  only 
his  right  as  tenant  in  tail,  but  a  right  as  tenant  in  fee;  which  he 
then  had  not.  Having  so  sold,  he  cannot,  against  his  own  deed, 
recover.  The  lessor  cannot  recover  all,  because  it  is  no  longer 
entailed.  The  heirs  general  of  William  cannot  recover  that 
which  he  had  sold  and  from  which  he  was  barred.  The  title  of 
defendant  is  clear. 

Postea  delivered  to  defendants  and  judgment  for  them. 


SARAH  HARKER  v.  HUGH  CHRISTY. 

Rule  to  stay  waste  in  dower,  (a) 
Dower. 

Woodruff,  for  plaintiff,  read  affidavits  to  prove  that  the  land 
of  which  dower  was  claimed  was  principally  woodland,  and  that 
divers  persons  were  cutting  down  and  carrying  off  the  wood  ;, 
and  thereupon  moved  for  a  rule  on  defendant,  and  those  claim- 
ing under  him,  to  stay  waste. 

It  was  questioned  by  Armstrong,  for  defendant,  whether  it 
was  proper  to  grant  such  rule  in  dower,  where  heir  was  unques- 
tionably owner  of  the  land  and  entitled  to  its  use ;  especially 
where,  as  in  this  case,  it  is  woodland  and  the  widow  cannot,  her- 
self, take  off  the  wood,  and,  therefore,  no  injury  is  done  to  her^ 
But  the  court  unanimously  granted  the  rule. 

(a)  Den  v.  Kinney,  ante  552 ;  Ware  v.  Ware,  2  Hal.  Ch.  117;  Brundage  v.. 
Goodfellow,  4  Hal  Ch.  513;  Scudder  v.  Trenton  Del.  Falls  Co.,  Sax.  694;  Rogers: 
v.  Potter,  3  Vr.  78  ;  Haulenbeck  v.  Conknght,  8  C.  E.  Qr.  407 ;  Porch  v.  Friesr 
3  C.  E.  Gr.  205. 


2  SOUTH.]          NOVEMBER  TERM,  1819.  839 


Hunter  ».  Budd. 


*HALL,  at  suit  of  CUMBERLAND  BANK. 


Venue,  (a) 


Jeffers,  for  defendant,  read  an  affidavit  that  the  cause  of  action 
arose  in  Salem,  and  thereupon  moved  that  the  venue  be  changed 
from  Cumberland  to  Salem. 

COURT.  It  is  not  matter  of  course  to  change  the  venue  when 
the  cause  of  action  arose  in  another  county.  Additional  facts 
must  be  shown. 

Rule  refused. 


HUNTER  t>.  BUDD  and  JONES. 

Rule  to  plead.  (6) 

The  writ  was  returned  to  February  term.  At  May  term  no 
proceeding  was  had.  At  September  a  rule  was  taken  for  defend- 
ant to  plead  in  thirty  days  or  judgment.  A  copy  of  this  rule 
was  not  served  on  defendant  and  he  did  not  plead,  And  now 
there  was  motion  for  judgment.  But  by 

THE  COURT.  A  copy  of  the  rule  must  be  served  or  judg- 
ment cannot  be  taken. 

(o)  Abrams  v.  Wood,  1  South.  SO;  Kerr  v.  The  Bank  &c.,  1  South.  363; 
Ward  v.  Holmes,  2  Hal.- 171;  BeU  v.  Morris  Canal  Co.,  3  Or.  63. 

(6)  v.  Dill,  1  Hal.  168;  Snediker  v.  Quick,  1  Or.  245 ;  Sauenburgh  T. 

Sharer,  2  Hal.  170;  Berry  v.  Cohanan,  8  HaL  135;  Haltey  ads.  Miller,  1  Hair. 
63;  Harwood  v.  Smethunt,  2  Vr.  502. 

*718 


840  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Dean  v.  Wade. 


A.  OGDEN  ads.  J.  G.  HUGHES. 

Attorney  discharged  from  arrest  on  common  bail,  (a) 


This  was  commenced  by  capias  ad  respondendum  served  on 
defendant,  one  of  the  attorneys  and  counselors  of  this  court. 

Scudder  moved  that  appearance  be  effected  by  filing  common 
bail. 

Halsey  objected  that  defendant  had  not  acted  as  attorney 
within  a  year  except  in  the  United  States  courts.  If  he  had,  it 
was  incumbent  on  him  to  prove  the  fact  to  free  himself. 

COUET.  He  is  both  attorney  and  counselor,  and  of  long 
standing,  and  if  he  continues  to  act  in  either  capacity  it  is  suf- 
ficient to  retain  the  privilege,  unless  taken  away  by  a  rule  of 
court  upon  proper  application  therefor.  The.  privilege  having 
attached  to  him  there  must  be  something  to  destroy  it. 

Let  common  bail  be  filed. 


*DEAN  v.  WADE. 

Party  obtaining  rule  must  see  that  it  is  returned.  (6) 
On  certiorari. 

Scudder  moved  to  continue  a  rule  on  justice  to  amend  taken  at 
the  last  term.  It  had  been  served  on  the  justice  but  no  return 
made  by  him. 

(a)  See  Rules  of  Supreme  Court  9  ;  Anonymous,  Spen.  4^4- 

(b)  Voorheis  v.  Kerns,  Penn.  *966 ;  Sockwell  v.  Sateman,  1  South.  S64. 

*719 


SOUTH.]          NOVEMBER  TERM,  1819.  841 


Miller  r.  Huffman. 


Hornblower.  The  party  ought  to  have  taken  care  to  get  the 
return  made. 

COURT.  Merely  to  serve  a  rule  is  not  enough.  The  party 
must  show  that  he  has  used  due  diligence  to  obtain  the  return,  so 
that  there  may  not  be  any  delay.  He  must  show  that  the  iault 
is  in  the  justice  or  the  other  party. 

Rule  refused. 


DEN  v.  VANCLEVE. 
Retaxation  of  costs.     Fees  of  witnesses. 

COURT.  A  party  is  entitled  to  the  fees  for  the  time  his  wit- 
nesses necessarily  attended,  but  if  the  time  is  disputed  he  must 
show  how  long  they  did  attend.  The  entry  on  the  minutes  of 
the  court  that  they  were  sworn  is  prima  facie  evidence  of  their 
attendance  on  the  day  the  cause  was  noticed  for  trial  and  of  their 
continuing  until  it  closed.  It  may,  however,  be  shown,  if  the 
fact  be  so,  that  they  were  sooner  dismissed  or  went  away  by 
<x>nsent  of  parties.  In  this  case  the  evidence  closed  on  Friday 
night  and  the  witnesses  were  then  discharged.  The  defendant  is, 
therefore,  entitled  to  tax  the  fees  of  all  his  witnesses  until  that 
time,  that  is,  for  five  days  each. 


HENRY  MILLER,  JR.,  v.  J.  HUFFMAN,  administrator  &c. 

Rule  for  affidavits,  (a) 
On  certiorari. 
The  suit  was  brought  for  the  recovery  of  money  paid  by 

(a)  Sockwell  v.  Euteman,  1  South.  S64  ;  Tovmly  v.  Rulan,  Spen.  605. 


842  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Thorp  v.  Rosa. 

Huffman,  as  administrator,  to  Miller,  more  than  the  dividend 
which  the  estate  of  the  intestate  was  able  to  pay,  and  the  state  of 
demand  alleged  a  promise  to  refund  the  same. 

*  Vroom  moved  and  the  court  granted  the  following  rule  z 
Ordered,  that  the  plaintiff  have  leave  to  take  affidavits  to  prove 
that  on  the  trial  of  the  appeal  before  the  said  court  of  common 
pleas  the  assumption  laid  in  the  state  of  demand  was  not  proved 
nor  attempted  to  be  proved  by  the  appellee. 


THORP  v.  Ross. 

Who  must  take ;  rule  on  justice  to  amend  &c.  (a) 


W.  Hoisted  moved  the  reversal  of  the  judgment.  F.  Fre- 
linghuysen  objected  that  the  cause  was  not  ready  for  argument ; 
that  the  justice  had  not  returned  the  summons  and  other  papers 
necessary  to  a  hearing  of  the  case,  and  it  was  incumbent  on  the 
plaintiff  to  have  the  return  completed  before  he  moved  the  cause. 

COURT.  After  the  justice  had  made  return  of  the  writ  and 
his  transcript,  if  the  plaintiff  is  satisfied  to  proceed  he  may  do  so, 
and  is  not  compelled  to  rule  the  justice  to  make  a  more  complete 
return.  If  the  defendant  wish  any  other  papers  than  those  sent, 
or  wish  the  justice  to  amend  his  return,  he  must  take  a  rule  for 
that  purpose.  The  party  which  needs  any  additional  return 
must  apply  for  and  see  that  it  is  made. 

A  rule  on  the  justice  to  send  up  the  papers  was  granted  on 
the  motion  of  defendant. 

(a)  Sockwett  v.  Bateman,  1  South.  364;  Sayre  v.  Blanchard,  ante  551  ;  Idle  v. 
Idle,  6  Hal.  92  ;  Anonymous,  1  Harr.  855  ;  Paterson  B.  R.  v.  Ackerman,  4  Zab. 
535  ;  Roston  v.  Morris,  1  Dutch.  17S  ;  Parsell  v.  State,  1  Vr.  530;  doe  v.  Elmer, 
Hal.  Dig.  143  \  8 ;  Smick  v.  Opdycke,  7  Hal.  85;  State,  Wilkinson  v.  Trenton, 
7  Vr.  499. 

*720 


2  SOUTH.]          NOVEMBER  TERM,  1819.  843 


Miller  ads.  Carhart. 


HUGH  MILLER  ads.  ROBERT  CARHART. 

Rule  to  take  paper  from  files,  (a)       • 


The  judgment  of  the  justice  having  been  reversed,  Ewing 
moved  for  leave  to  take  from  the  files  the  sealed  bill  given  by 
Carhart  to  Miller,  and  on  which  the  action  was  brought. 

BY  THE  COURT.  The  original  evidences  of  the  debt,  such  as 
bonds,  bills  and  notes  on  which  the  suit  is  brought,  ought  not  to 
be  sent  up  with  the  certiorari.  The  justice  ought  to  send  certi- 
fied copies  of  them.  The  originals  are  very  seldom  necessary  or 
at  all  useful  in  this  court,  and  when  necessary  may  be  obtained 
by  special  rule  for  that  purpose.  When  they  are  sent  up  they 
can  only  be  taken  from  the  files  by  rule  for  that  purpose  entered 
upon  the  minutes,  that  it  may  appear  when  and  why  they  were 
taken.  Let  the  rule  be  entered  and  the  bill  taken  in  the  present 
case. 

(a)  NiehoUs  T.  State,  ante  64*;  Morris  Canal  ads.  State,  t  Or.  411 ;  MorreU 
v.  Fearing,  Spen.  670;  see  Browning  v.  Cooper,  S  Harr.  196. 


"CASES  DETERMINED 


IN  THE 


SUPREME  COURT  OF  JUDICATURE 


OF  THE 


STATE  OF  NEW  JERSEY 

FEBRUARY  TERM,  1820. 


J.  BUCHANNAN,  surviving  executor  of  OPDIKE,  v.  J.  ROW- 
LAND and  others. 

1.  Judgment  and  execution  levied  in  1765.    Claim  barred  in  1815,  by  time, 
though  an  injunction  to  stay  execution  had  issued,  (a) 

2.  Assessment  of  damages  on  scire  facias  to  take  out  execution. 


This  case  came  before  the  court  at  November  term,  1819,  on  a 
rule  to  show  cause  why  the  verdict  taken  before  Justice  Southard, 
at  the  Somerset  circuit,  in  April,  1818,  should  not  be  set  aside. 

Upon  argument  and  motion  in  open  court  a  special  scire  facias 
under  the  statute  was  issued,  returnable  to  February  term,  1817. 
It  recited  in  substance  that  in  October,  1783,  in  the  common 
pleas  of  Somerset  county,  Buchannan  and  Opdike,  executors  of 
John  Opdike,  recovered  against  Thomas  Peterson,  Thomas  Peter- 
fa)  See  Pears  v.  Eachc,  Ooxe  t06 ;  GhUick  v.  Lodcr,  1  Qr.  68 ;  Johnson  v. 
Tuttle,  1  Stock.  S65  ;  Bird  v.  InsUt,  8  C.  E.  Or.  S6S.  When  equity  will  relieve, 
De  Kay  v.  DarraA,  S  Or.  889;  Doughty  v.  Doughty,  t  Stock.  Stf;  and  see  Lt 
Branthwaite  v.  Halsey,  4  Hal.  3. 

721*  845 


846  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Buchannan  v.  Kowland. 


son,  Jr.,  and  Harpent  Peterson,  a  debt  of  £277  14s.  lid.,  with 
their  costs ;  that  this  judgment  was  removed  into  the  supreme 
court,  by  writ  of  error,  and  in  May,  1785,  was  affirmed;  that  a 
fi.fa.  returnable  to  September,  1785,  was  issued  and  delivered  to 
Robert  Stockton,  sheriff  of  Somerset,  and  by  him  levied  "  on 
sundry  goods  and  chattels  belonging  to  Thomas  Peterson,  one  of 
the  defendants,  viz.,  four  horses,  two  cattle,  one  wagon,  two  beds 
and  bedding,  looking-glass,  table,  chairs  &c.,  *and  on  two  hun- 
dred and  fifty  acres  of  land  at  Neshanic,  bounded  by  lands  of 
Roeliff  Peterson  and  others,  value  of  said  goods  and  land  un- 
known, which  remain,"  &c. ;  that  Opdike  hath  died  and  Buchan- 
nan survived ;  that  Stockton,  the  sheriff,  died,  not  having  ful- 
filled the  duties  of  his  office  as  he  was  commanded  by  the  writ; 
that  the  fi.fa.  had  not  been  further  executed,  and  the  judgment 
remained  wholly  unpaid ;  that  Thomas  Peterson,  Jr.,  and  Har- 
pent Peterson  died  without  satisfying  the  judgment,  and  leaving 
heirs-at-law ;  that  some  of  the  defendants  are  tenants  of  the  free- 
hold levied  on,  and  others  heirs  of  the  defendants,  and  command- 
ing said  defendants  to  appear  and  show  cause  why  the  lands 
levied  on,  or  such  part  thereof  as  should  be  sufficient  to  satisfy 
the  plaintiffs,  should  not  be  sold  &c. 

The  defendants  pleaded — 1.  That  the  sheriff  did  not  make  the 
levy  set  forth  on  any  lands  in  their  possession  &c.  2.  That  there 
was  no  such  return  by  the  sheriff.  3.  That  the  sheriff  did  not 
make  a  levy  on  the  goods  and  lands  of  Thomas  Peterson  &c.  4. 
That  Thomas  Peterson  was  not,  at  the  time  of  the  rendition  of 
the  judgment  and  levy  made,  seized  in  fee,  or  in  any  estate  or 
interest  in  the  lands  &c.  5.  That  the  sheriff  took  sufficient  goods 
to  satisfy  the  execution.  6.  That  the  defendants  paid  the  judg- 
ment, and  it  was  received  by  the  plaintiffs  in  full  satisfaction. 
7.  That  the  defendants  paid  the  money  to  the  plaintiffs. 

The  plaintiffs  replied  and  joined  issue.  At  the  trial  the  plain- 
tiff produced  a  record  from  the  supreme  court,  proving  the  judg- 
ments, execution  and  levy  set  out  in  the  seire  facias,  and  then 
gave  in  evidence  that  the  lands  levied  on  were  those  in  possession 
of  the  defendants ;  that  Thomas  Peterson  first  cleared,  built  upon 
and  cultivated  them  to  the  extent  of  about  two  hundred  and  fifty 

*722 


2  SOUTH.]  FEBRUARY  TERM,  1820.  847 


Buchann&n  r.  Rowland. 


.acres ;  that  he  was  a  large  farmer,  but  by  being  security  for  his 
sons  was  much  reduced  about  1784  5,  and  had  then  but  little 
personal  property  around  him — a  horse  or  two  &c.  Before  the 
sheriff  made  any  sale  under  the^ert  facias  the  defendants  filed  a 
bill  in  chancery  for  relief,  and  obtained  an  injunction  staying  the 
further  proceedings  of  the  sheriff.  On  the  13th  of  August,  1787, 
a  rule  was  taken  for  answer  to  the  bill,  and  the  27th  of  February, 
1788,  an  attachment  was  issued  to  compel  an  answer.  The  de- 
fendants paid  the  costs,  demurred  and  pleaded.  On  the  2d  of  De- 
cember, 1789,  the  demurrer  and  plea  were  argued  but  the  *result 
did  not  appear.  On  the  29th  of  December,  1789,  the  bill  was 
amended  and  no  further  proceedings  had  upon  it  until  Septem- 
ber, 1815,  when,  after  notice  to  Elias  Boudinot,  Esq.,  the  solici- 
tor of  the  complainants,  and  upon  motion  made,  the  injunction 
was  dissolved  by  Chancellor  Ogden. 

The  defendants  then  proved  that  in  April,  1789,  Henry  Gar- 
retsie  obtained  judgment  in  the  supreme  court  against  Thomas 
Peterson ;  that  a  fieri  facias  was  issued  and  levied  upon  these 
lands;  and  that  in  April,  1791,  they  were  publicly  advertised 
and  sold  by  William  Wallace,  then  sheriff  of  Somerset,  for  £1 
15s.  per  acre,  without  any  objection  or  claim  by  anyone;  that 
Roeliff  Peterson  bought  and  received  from  the  sheriff  a  deed 
dated  April  12th,  1791.  He  conveyed  to  Henry  Garretsie  by 
deed  dated  April  25th,  1792;  and  Garretsie  conveyed  to  Row- 
land, one  of  the  defendants,  by  deed  with  warranty,  dated  April 
12th,  1801. 

The  plaintiff  then  proved  that  Roeliff  Peterson,  after  he 
bought  the  land  at  sheriff's  sale,  rented  it  for  one  year  and  de- 
clined renting  it  any  longer,  telling  the  tenant  that  when  ho 
bid  he  did  it  under  a  mistake,  and  did  not  recollect  there  was  a 
judgment  on  it,  and  he  wished  Garretsie  to  take  it  back ;  that 
it  was  worth  the  prjce  and  he  would  be  glad  to  have  it  without 
the  encumbrance,  but  Opdike's  judgment  was  £600  or  £700,  and 
would  take  all  he  was  worth  to  pay  it.  At  this  time  he  did  not 
.sjxsak  of  his  own  mortgage.  Garretsie  took  the  land  off  his 
hands.  It  was  worth  £6  an  acre,  in  the  opinion  of  the  witiu •>>, 
-who  also,  before  and  after  that  time,  heard  that  there  was  a  debt 

*723 


848  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Buchannan  v.  Rowland. 


on  the  land  unpaid.  The  defendant  then  proved  that  at  the  sale 
Roeliff  Peterson  said  he  would  bid  up  the  land  so  as  to  save  his 
own  mortgage ;  and,  after  he  had  bid,  someone  told  him  of  his 
mistake ;  he  then  informed  the  sheriff  that  he  Jhad  bid  under  a 
mistake  and  recalled  his  bid,  but  the  sheriff  would  not  permit 
him  to  do  so,  but  struck  it  off  to  him.  The  defendant  also  gave 
in  evidence  two  mortgages  from  Thomas  Peterson — one  to  Roe- 
liff Peterson,  dated  May  8th,  1787,  the  other  to  Garret  Vanost- 
rand  and  Ferdinand  Suydaru,  dated  May  1st,  1784. 

The  jury  found  a  general  verdict  in  favor  of  the  plaintiff  on 
all  the  issues,  but  did  not  assess  damages.  The  defendant  main- 
tained that  the  verdict  was  against  the  law  and  evidence  on  the  plea 
of  payment,  and  that  the  jury  ought  to  have  assessed  the  damages. 

*  Attorney-  General,  in  support  of  the  rule.  1.  The  verdict  is 
against  law.  The  jury  ought  to  have  found  the  judgment  paid 
because  it  slept  from  1785  until  the  seire  facias  issued.  The 
defendant  was  a  purchaser  at  a  public  sale  by  execution  and 
without  notice.  And  although  the  first  execution  was  stayed  by 
injunction,  yet  as  it  issued  upon  an  oath  of  equity  and  has  re- 
mained nearly  thirty  years,  payment  or  satisfaction  ought  to  have 
been  inferred.  The  plaintiff  was  a  neighbor  and  lay  still,  giv- 
ing no  notice  and  taking  no  step  until  Peterson  died  and  a  num- 
ber of  conveyances  had  been  made.  He  was  the  actor  and 
ought  long  since  to  have  done  what  he  did  lately — get  the  in- 
junction dissolved.  Nor  was  any  step  necessary  for  this  purpose 
on  his  part ;  it  was  dissolved  by  the  death  of  Peterson,  and  he 
might  then  have  proceeded.  He  was  as  much  bound  to  do  so  as 
if  it  never  had  issued.  It  could  at  no  time  have  more  effect  in 
stopping  the  limitation  from  running  against  the  claim  than  a 
plea  of  payment  would  have  had.  Salk.  322.  Where  a  party 
neglects  the  claim  of  any  right  for  twenty  years,  the  presumption 
of  law  is  that  it  is  satisfied.  Pat.  856 ;  7  Johns.  556.  Such 
delay  would  be  a  complete  bar  to  a  scire  facias  to  revive  a  judg- 
ment ;  and  the  fact  that  execution  was  issued  ought  to  make  no 
difference.  4-  Burr.  1963.  This  doctrine  of  limitation  is  more 
important  in  cases  of  judgment  than  any  other,  for,  in  them,  sat- 

*724 


2  SOUTH.]  FEBRUARY  TERM,  1820.  849 


Buchannan  r.  Rowland. 


isfaction   is  seldom  entered.     And   the  circumstances    of   the 
present  case  render  the  presumption  peculiarly  strong. 

2.  The  verdict  is  general.  The  jury  assessed  no  damages  and 
the  court  cannot  assess  them.  They  should  have  found  what 
the  goods  taken,  under  the  fieri  facias,  were  worth,  and  assessed 
the  damages  beyond  that. 

R.  Stockton.  The  plaintiff  sustained  the  issues  on  his  part 
fully.  The  defendant  gave  no  evidence  of  the  value  of  the  goods 
levied  on,  nor  of  payment.  Of  actual  payment  there  was  no  pre- 
tence. The  whole  history  of  the  cause  proves  that  none  was  made. 
It  was  resisted  and  defeated  at  every  step.  But  the  naked  fact 
of  the  judgment  being  in  1785  is  said  to  operate  as  a  complete 
bar.  Length  of  time  operates  either  as  a  legal  bar  or  as  presump- 
tive evidence  of  payment.  At  common  law  it  was  no  bar,  but 
the  legislature  interfered  and  made  it  a  positive  bar  in  some  cases  ; 
but  no  case  can  be  operated  upon  by  the  legislative  *provisions 
unless  within  the  very  words.  This  case  is  not  so.  The  statute 
applies  only  to  judgments  on  which  no  execution  has  been  issued. 
What,  then,  is  the  presumptive  evidence  arising  from  time  ?  It 
is  such  that  if,  from  the  circumstances,  the  jury  believe  that 
no  payment  has  been  made  they  may  reject  it.  Coivp.  108.  It 
is  presumptive  only,  and  may  be  overcome.  And  what  is  the 
presumption  of  payment  here  by  the  Petersons,  which  is  the  only 
payment  within  the  plea  ?  None,  for  they  were  not  in  a  condi- 
tion to  pay.  There  is  no  presumption  that  the  sheriff  or  pur- 
chaser paid  any  money,  and  if  they  did  it  could  not  be  shown 
under  the  present  pleadings.  A  party  occasioning  a  delay  can- 
not set  it  up  as  a  protection,  and  here  it  was  occasioned  by  Peter- 
son. The  only  charge  against  the  present  plaintiffs  is  that  they 
did  not  zealously  pursue  their  rights ;  but  this  is  not  to  injure 
the  heirs.  The  idea  that  the  death  of  Peterson  dissolved  the  in- 
junction is  incorrect ;  he  was  one  of  three  complainants,  and  even 
if  there  could  have  been  a  dissolution  of  the  injunction  or  abate- 
ment of  the  suit,  execution  could  not  issue  without  leave,  and  this 
would  have  at  once  been  prevented  by  showing  that  the  causes 
for  injunction  still  existed.  2  Ewr.  1065.  Garretsie  bought 
*725  54 


850  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Buchannan  v.  Rowland. 

subject  to  this  judgment  and  got  an  allowance  for  it;  he  gave 
only  thirty-five  shillings  an  acre,  and  if  he  is  not  now  to  pay  he 
will  cheat  both  parties.  The  sheriff  could  sell  only  under  the 
lien  of  this  judgment,  of  which  there  was  no  necessity  to  prove 
a  notice,  or,  if  there  was,  the  evidence  proves  it.  Judgment  and 
execution  remain  a  lien  and  the  record  is  full  notice  to  all  the 
world,  like  a  recorded  mortgage.  3  Bin.  361.  The  case  in  2 
Burr.  660,  overrules  Salk.  322,  and  7  Johns.  556  is  inaccurately 
reported  in  point  of  language. 

2.  Prima  fade  this  is  not  a  proper  case  for  the  assessment  of 
damages,  it  being  a  scire  facias  for  execution,  and  the  judgment 
being  therefor,  it  is  considered  that  the  plaintiffs  have  execution 
<fec.  The  necessity  for  assessment,  if  any,  arose  out  of  the  fact 
that  part  payment  or  satisfaction  had  been  made.  Of  this  there 
was  no  proof.  The  levy  was  to  no  value  and  was  in  no  respect 
satisfied  in  fact  or  law.  The  property  was  left  with  defendant, 
and  the  injunction  taken  out.  1  Coxe  36.  The  defendant  can 
only  plead  seizure  under  an  execution  where  there  is  an  actual 
seizure  to  the  full  value.  1  Ld.  Ray.  1070.  But  if  defendant 
wished  an  assessment  he  should  have  shown  the  value  *of  the 
goods  taken,  but  he  deserted  the  issue.  The  jury  could  only 
find  the  truth  of  the  plea. 

Attorney- General  replied. 

The  court  sustained  the  motion,  and  directed  a  new  trial. 

KIBKPATRICK,  C.  J. 

This  was  a  special  scire  facias  directed  to  the  heirs  and  tenants 
of  the  lands  which  formerly  belonged  to  one  Thomas  Peterson, 
deceased,  to  show  cause  why  the  said  lands  should  not  be  sold  by 
the  present  sheriff,  by  virtue  of  an  execution  levied  upon  the 
same  by  a  former  sheriff,  now  deceased,  to  satisfy  the  plaintiff 
of  a  certain  judgment  therein  set  forth. 

To  this  scire  facias  there  were  a  number  of  pleas,  one  of  which 
was  payment  and  issues  taken  thereupon,  (a)  The  cause  was 

(a)  See  Earle  v.  Earle,  1  Harr.  873. 

*726 


2  SOUTH.]  FEBRUARY  TERM,  1820.  851 


Buchannan  «.  Rowland. 


Carried  down  for  trial  to  the  Somerset  circuit  in  April,  1818,  and 
verdicts  rendered  for  the  plaintiff  upon  all  the  issues. 

Upon  the  coming  in  of  the  postea  there  was  a  motion  for  a 
new  trial,  which  is  now  the  subject  of  consideration. 

The  only  facts  in  the  case  which  are  at  all  material  are  these : 

1.  In  October  term,  1783,  the  executors  of  one  John  Opdike, 
of  whom  John  Buchannan,  the  plaintiff  here,  is  the  survivor,  in 
the  inferior  court  of  common  pleas  of  the  county  of  Somerset, 
recovered  a  judgment  against  the  said  Thomas  Peterson  and 
Thomas  Peterson,  Jr.,  and  Harpent  Peterson,  for   £277    14s. 
lie?.,  with  costs.     This  judgment  was  afterwards  removed,  by 
writ  of  error,  into  the  supreme  court  and  there  affirmed,  and 
•execution  was  issued  thereupon,  returnable  to  September  term, 
1785,  and  was  then  returned  levied  upon  sundry  goods  and 
•chattels,  to  small  amount,  and  also  upon  two  hundred  and  fifty 
acres  of  land  of  the  said  Thomas  Peterson,  which  is  found  by 
the  jury  to  be  the  same  land  now  in  question,  of  which  the  de- 
fendants are  the  tenants. 

2.  In  November,  1785,  the  defendants  in  that  suit  filed  a  bill 
in  chancery,  to  be  relieved  against  that  judgment  and  execution, 
and  took  out,  as  is  said,  an  injunction,  enjoining  as  well  the 
sheriff,  who  had  levied  the  execution,  as  the  plaintiffs,  from  all 
further  proceedings  thereupon.     Upon  this  bill  there  were  several 
steps  taken  by  the  parties  respectively  until  the  29th  of  Decem- 
ber, 1789,  when  the  complainants,  upon  a  rule  obtained  for  that 
purpose,  filed  an  amended  bill ;  and,  after  this,  there  is  no*thing 
further  done  until  September,  1815,  when  we  find  the  injunction 
dissolved  without  answer. 

3.  In  April  term,  1789,  one  Henry  Garretsie  obtained  a  judg- 
ment in  the  supreme  court  against  the  said  Thomas  Peterson  for 
£450,  with  costs,  upon  which  an  execution  was  issued,  directed 
to  the  sheriff  of  the  county  of  Somerset ;   and  in  April,  1791, 
the  said  sheriff,  by  virtue  of  the  said  execution,  sold  the  said 
lands  so  as  aforesaid  levied  upon,  to  one  Roeliff  Peterson,  who 
immediately  entered  upon  and  became  possessed  thereof;  and, 
being  so  possessed,  about  a  year  afterwards,  sold  the  same  to  the 
said  Henry  Garretsie,  who,  in  like  manner,  became  possessed, 

*727 


852  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Buchannan  c.  Rowland. 


and,  in  1801,  sold  the  same  again  to  the  defendant,  John  Row- 
land, who,  together  with  those  holding  under  him,  has  possessed 
the  same  till  this  day,  taking  the  rents,  issues  and  profits  there- 
of, 'without  render  or  account,  to  their  own  proper  use  and 
benefit. 

4.  In  November  term,  1816,  this  stire  facias  was  sued  out 
and  issues  taken  upon  it,  and  tried  as  above  mentioned. 

5.  In  addition  to  the  facts  and  proceedings  above  stated,  it 
was  given  in  evidence  to  the  jury  that  at  the  time  of  the  sale  of 
the  said  lands  by  the  sheriff  there  were  two  mortgages  upon  the 
same — one  to  Vanostrand  and  Suydam,  dated  May  1st,  1784r 
and  the  other  to  the  said  Roeliff  Peterson,  dated  November  8th, 
1787;  that  Roeliff  Peterson,  at  the  time  of  the  vendue,  said  he- 
would  bid  up  the  land  so  as  to  cover  his  own  mortgage,  and  did 
actually  bid  it  up  to  thirty-five  shillings  per  acre,  but  upon  being 
informed,  after  he  had  so  bid,  of  the  claim  of  Opdike's  executors,  he 
told  the  sheriff  he  had  been  under  a  mistake  and  would  recall  his 
bid,  but  that  the  sheriff  refused  to  permit  him  to  do  so,  and 
struck  it  down  to  him  accordingly ;  that  he  was,  therefore,  dis- 
satisfied with  the  purchase,  and  when  he  had  sold  to  Garretsie  he 
said  he  was  glad  he  had  got  clear  of  it,  for  it  would  have  ruined 
him.     And  it  was  further  given  in  evidence  that  Thomas  Peter- 
son, before  the  year  1789,  by  being  security  for  his  sons  and 
other  causes,  had  become  considerably  reduced  in  his  circum- 
stances, and  had  but  little  stock  upon  his  farm  or  other  personal 
property  about  him.     These  are  the  facts. 

This  case,  taken  in  extenso,  presents  several  questions  well 
worthy  of  consideration.  But  as  the  defendants  themselves  have 
not  raised  these  questions  either  at  the  trial  or  in  this  argument, 
*but  have  placed  themselves  upon  the  plea  of  payment  alone, 
and  rested  for  the  verification  of  that  plea  upon  the  presumption 
of  law  arising  from  the  length  of  time,  it  would  be  improper  to 
make  them  the  subject  of  investigation  or  the  ground  of  decision 
upon  this  motion.  The  defendants  have  chosen  their  defence 
and  they  must  stand  upon  its  strength. 

What,  then,  is  the  ground  of  this  presumption  of  payment, 

*728 


SOUTH.]          FEBRUARY  TERM,  1820.  853 


Buchannan  r.  Rowland. 


arising  from  length  of  time,  to  what  cases  does  it  apply  and 
how  far  is  it  conclusive? 

It  is  said  that  by  the  common  law  there  was  no  stated  or  fixed 
time  for  the  bringing  of  actions.  This  law  was  always  open  ; 
satisfaction  was  never  presumed.  In  the  progress  of  society, 
however,  it  was  soon  found  necessary  to  supply  this  deficiency  l>y 
statute  and  to  compel  men  to  prosecute  their  rights  within  a  rea- 
sonable time,  or  to  abandon  them  forever.  Hence  we  find,  from 
the  reign  of  Henry  I.,  a  succession  of  statutes,  narrowing  the 
latitude  of  the  common  law  in  this  respect,  and  limiting  the 
time  in  which  actions  might  be  brought  to  shorter  and  shorter 
periods  until  they  had  brought  it  down,  in  most  cases,  to  twenty 
years  only,  and  in  many  to  a  still  shorter  time. 

The  reasons  upon  which  these  statutes  are  founded,  Sir  Wil- 
liam Blackstone  tells  us,  are,  first,  because  the  law  will  not  dis- 
turb an  actual  possession  in  favor  of  a  claim  which  has  been 
suffered  to  lie  dormant  for  a  long  and  unreasonable  time,  nam 
•vigtiantibus  et  non  dormientibus  subserviunt  leges ;  secondly,  be- 
•cause  it  presumes  that  he  who  has  for  a  long  time  had  the  undis- 
turbed possession  of  either  goods  or  lands,  however  wrongfully 
obtained  at  first,  has  either  procured  a  lawful  title  or  made  satis- 
faction to  the  injured,  otherwise  he  would  have  been  sooner  sued  ; 
and  thirdly,  because  it  judges  that  such  limitations  tend  to  the 
prevention  of  innumerable  perjuries,  the  preservation  of  the 
public  tranquillity,  and,  what  it  values  perhaps  more  than  nil, 
the  suppression  of  contention  and  strife  among  men,  nam 
prcedpue  interest  republicce  ut  finis  sit  litium. 

Taking  these  great  fundamental  principles,  then,  thus  recog- 
nized by  successive  statutes,  as  the  basis  of  their  conduct,  the 
•courts  of  justice  built  up  upon  them  a  system  extending  beyond 
the  letter  of  the  statutes  themselves.  They  were  professedly 
founded,  in  part,  Sir  William  Blackstone  says,  upon  the  pre- 
sumption that  lawful  titles  may  have  been  acquired  under  pos- 
*sessions  tortiously  taken,  and  that  satisfactions  may  have  been 
made  upon  contracts,  in  their  origin  indisputably  valid,  but  that 
the  evidence  thereof,  after  lying  so  long,  may  be  destroyed  by  the 
all-devouring  tooth  of  time.  The  judges  only  extended  this 

*729 


854  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Buchannan  v.  Rowland. 


principle  to  cases  which,  though  not  within  the  letter,  were  yet 
within  the  reason  and  spirit  of  the  law. 

Lord  Hale,  I  think,  is  said  to  be  the  first  who  adventured 
upon  this  course ;  he  was  followed  by  Holt,  and  then  came  Lord 
Mansfield  with  still  a  bolder  step ;  the  judges  in  the  chancery,, 
in  the  meantime,  keeping  equal  pace,  if  not  even  going  beyond 
the  courts  of  law. 

In  the  case  of  The  King  v.  Stevens,  one  of  the  corporators  of 
St.  Ives  (Burr.  433\  Lord  Mansfield  said  there  was  no  direct 
and  express  limitation  when  a  bond  should  be  supposed  to  be 
satisfied ;  the  general  rule  was,  indeed,  about  twenty  years,  but 
it  had  been  left  to  a  jury  upon  eighteen.  So,  though  there  was 
no  statute  nor  fixed  rule  of  limitation  as  to  the  length  of  time 
which  should  quiet  the  possessors  of  these  offices,  yet  they  ought 
not  to  be  disturbed  after  a  great  length  of  time. 

In  the  Winchelsea  Gases,  Burr.  1962,  the  court  said  they  had 
unanimously  resolved  that  after  twenty  years'  undisturbed  pos- 
session of  a  corporate  franchise  they  would  grant  no  rule  upon  a 
corporator  to  show  by  what  right  he  held.  This  resolution  was. 
founded,  not  on  any  express  provision  of  the  law,  but  in  analogy 
to  the  rules  established  in  other  cases.  By  the  statutes  of  limi- 
tation, they  said,  writs  of  formedon  and  entry  into  lands  were 
confined  to  twenty  years,  writs  of  error  were  confined  to  twenty 
years,  courts  of  equity  did  not  allow  the  redemption  of  mort- 
gages after  twenty  years,  bills  of  review  had  been  generally  disal- 
lowed after  twenty  years,  bonds  which  had  lain  dormant  should 
be  presumed  to  be  paid  after  twenty  years,  ejectments  required 
proof  of  possession  within  twenty  years,  and  so,  leaning  upon 
these  cases,  they  extended  the  doctrine  by  analogy,  without  posi- 
tive statute,  to  the  case  of  a  corporate  franchise  then  depending 
before  them. 

The  same  ground  has  been  taken  and  the  same  course  pursued 
by  succeeding  judges  down  till  this  day,  so  that  nothing  can  be 
better  settled  than  that  they  do  extend  the  principles  of  these 
statutes  by  analogy  only  to  cases  within  the  reason  and  spirit, 
though  not  within  the  letter,  of  them.  And,  upon  this  ana*logy,, 

*730 


2  SOUTH.]  FEBRUARY  TERM,  1820.  855 


Buchannan  r.  Rowland. 


this  presumption  of  payment,  as  appears  by  Lord  Mansfield's 
reasoning,  is  wholly  founded. 

We  have  carried  the  limitation  of  actions  still  further  than 
they  have  done  in  England.  We  have  carried  it  so  far  that  I  do 
not  now  recollect  a  single  case,  unless,  indeed,  it  be  the  one  be- 
fore us,  in  which  an  action  can  be  maintained  after  twenty  years. 
After  that  time  latent  titles  to  land  unaccompanied  by  possession 
are  supposed  to  be  extinct,  mortgages  to  be  redeemed,  judgments 
to  be  satisfied,  bonds  to  be  paid.  Our  act  for  the  limitation  of 
actions  extends  expressly  to  all  these.  Now,  if  in  England  the 
writs  of  formedon  and  entry  into  lands  and  of  writs  of  error  and 
actions  of  ejectment  created  by  statute  would  be  extended,  by 
analogy,  to  corporate  franchises  and  be  made  the  ground  of  pre- 
sumptive payment  of  bonds  and  mortgages,  certainly  it  cannot 
be  going  too  far  to  say  that  when  our  act  of  assembly  has  de- 
clared that  no  scire  facias  shall  issue  or  action  of  debt  be  main- 
tained upon  a  judgment,  unless  within  twenty  years  from  its 
date,  and  that,  too,  upon  the  presumption  that  it  is  already  paid, 
I  say  it  will  certainly  not  be  going  too  far  to  extend  this  pre- 
sumption, by  analogy,  to  the  case  of  an  execution  upon  such 
judgment,  which  has,  indeed,  been  levied  but  has  lain  dormant, 
now,  for  thirty  years  and  more. 

But  suppose  these  points  to  be  gained,  that  the  principle  of 
the  statute  is  to  be  extended  by  analogy,  and  that  the  presump- 
tion of  payment  built  upon  it  is  applicable  to  the  case  before  us, 
in  the  same  extent  and  upon  the  same  reason  as  to  a  bond,  still 
it  is  to  be  inquired  how  far  that  presumption  is  conclusive,  and 
whether  the  verdict  of  a  jury  can  be  set  aside  and  a  new  trial 
granted  because  they  have  found  against  it. 

It  is  said  by  the  plaintiff  that  the  presumption  at  most  is  but 
evidence  upon  the  plea  of  payment ;  that  it  may  be  strengthened 
or  invalidated  by  concomitant  circumstances,  and  that  the  jury, 
therefore,  are  to  judge  of  its  strength  or  weakness,  and  to  pass 
upon  it  like  other  evidence.  And  though  this  may  be  a  just 
view  of  it  in  a  certain  sense,  yet,  upon  a  careful  examination, 
perhaps  we  shall  find  it  rather  specious  than  solid,  so  far  as  it 
respects  the  present  case. 


856  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Buchannan  v.  Rowland. 


It  is  true  that  this  presumption  may  be  either  strengthened  or 
invalidated ;  nay,  indeed,  it  may  be  wholly  overcome  by  circum- 
stances ;  and  when  such  circumstances  are  mere  matters  in  *pais 
to  be  proved  by  witnesses,  the  jury  must  judge  both  of  the  truth 
of  their  existence  and  of  their  operation  and  effect  upon  the  pre- 
sumption. But  still,  when  the  length  of  time  is  wholly  unac- 
counted for,  and  the  presumption,  therefore,  stands  in  its  full 
force,  it  is  conclusive  ;  and  the  conclusion  to  be  drawn  from  it  is 
a  conclusion  of  law  to  be  declared  by  the  court  always  and  uni- 
versally the  same ;  and  though  the  jury  must  pass  upon  the 
issue  of  solvit  vel  won,  yet  the  law  thus  to  be  declared  to  them  is 
the  evidence  by  which  they  are  to  be  governed ;  they  are  not  by 
vain  conjecture  or  imaginary  reasonings  to  break  down  the  rules 
of  property  established  by  law  and  declared  by  the  court. 

In  the  case  of  Humphreys  v.  Humphreys,  3  P.  Wins.  895, 
Lord  Chancellor  Talbot  says ;  that  after  twenty  years,  and  no 
interest  paid  during  that  time,  a  bond  shall  be  presumed  to  be 
satisfied,  unless  something  appears  to  answer  for  that  length  of 
time.  And,  after  a  verdict  at  law,  he  granted  an  injunction  to 
stay  proceedings  thereupon.  So  (same  book  286},  on  a  demurrer 
to  a  bill  to  redeem  a  mortgage,  where  it  appeared  by  the  bill  that 
the  mortgagee  had  been  in  possession  more  than  twenty  years, 
the  court  held  that  the  defendant  need  not  even  plead  the  length 
of  time  but  might  demur,  and  that  no  redemption  could  be 
allowed ;  for  that  as  twenty  years  would  bar  an  entry  or  eject- 
ment, so  it  should  bar  the  right  of  redemption  also ;  making  the 
presumption  not  only  a  bar,  but  a  legal  bar,  conclusive  upon  a 
demurrer. 

In  the  case  of  Searle  v.  Harrington,  Str.  813,  the  defendant 
had  pleaded  payment  and  rested  upon  the  legal  presumption 
arising  from  length  of  time,  the  bond  being  of  more  than  twenty 
years'  standing.  The  plaintiff  offered  as  evidence,  to  encounter 
this  presumption,  an  endorsement  upon  the  bond  of  interest  paid 
within  the  twenty  years,  but  this  was  overruled  by  the  court  and 
a  nonsuit  ordered.  In  the  reconsideration  of  this  case  at  bar, 
the  court  indeed  held  that  the  endorsement  on  the  bond,  of  in- 
terest paid,  was  lawful  evidence,  and  ought  to  have  been  sub- 

*731 


2  SOUTH.]          FEBRUARY  TERM,  1820.  857 


Buchannan  v.  Rowland. 


mitted  to  the  jury  to  determine  whether  it  was  made  fairly  and 
bona  fide,  or  merely  to  evade  the  presumption  ;  but  there  was  no 
pretence  that  the  presumption  arising  from  length  of  time  was 
not  in  itself  a  good  bar,  or  that  standing  alone  it  was  not  a  good 
ground  of  nonsuit,  or  that  it  ought  to  have  been  left  to  the  jury 
to  determine  its  effect. 

So,  in  an  anonymous  case  (6  Mod.  22)  Holt,  C.  J.,  says  if  a 
*bond  be  of  twenty  years'  standing  and  no  demand  proved  thereon, 
or  good  cause  shown  for  so  long  forbearance,  upon  solvit  ad  diem 
I  will  intend  it  paid. 

From  these  cases,  without  going  into  a  multitude  of  others,  I 
think  the  conclusion  irresistible  not  only  that  twenty  years  affords 
a  presumption  of  payment  but  that  that  presumption,  standing 
alone,  is  conclusive  in  the  law,  and  is  so  to  be  declared  by  the 
court,  and  not  to  be  left  to  the  jury  to  determine  its  effect.  It  is 
true  that  Buller,  in  a  later  case  in  the  king's  bench  seems  to 
growl  at  this  doctrine  a  little,  and  to  express  himself  as  if  he 
thought  the  jury  the  sole  judges  of  the  effect.  Whether  he  was 
led  into  this  from  having  given  a  hasty  opinion  at  the  nisi  prius 
or  from  what  other  cause  soever,  if  he  meant  to  maintain  that  doc- 
trine he  was  in  an  error.  It  is  contrary  to  the  whole  course  of 
decision  upon  that  subject  as  well  as  to  the  very  nature  of  the 
thing  itself,  for  whatever  the  law  presumes  it  belongs  to  the 
court  to  declare  and  not  to  the  jury. 

I  have  spoken  of  the  nature  and  effect  of  this  presumption  when 
standing  alone.  Is  there,  then,  anything  in  this  case  to  overcome 
or  at  all  to  invalidate  it? 

The  plaintiff  attempted  to  show  at  the  trial,  and  he  has  in- 
sisted here  also,  that  Roeliff  Peterson,  the  purchaser,  at  the  time 
of  the  purchase,  had  notice  of  this  judgment  and  execution  under 
which  he  claims.  The  evidence,  however,  is  really  the  other 
way.  He  had  made  his  bid  without  such  notice,  and  afterwards 
being  informed  of  them  by  some  bystander,  not  by  the  plaintiff, 
he  wished  to  recall  it  but  was  not  permitted.  His  object  was  to 
secure  his  mortgage ;  he  thought  he  was  doing  so,  but  was  in- 
formed he  was  mistaken.  I  do  not  lay  stress  upon  this  want  of 
notice,  however,  for  the  judgment  and  execution  l>eing  matters 

*732 


858  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Buchannan  v.  Kowland. 


of  record  in  a  court  of  common  law,  every  purchaser  was  to  take 
notice  of  them  at  his  peril.  But  the  same  thing  cannot  be  said  of 
the  proceedings  in  the  court  of  chancery ;  that  is  not  a  court  of 
record ;  none  take  notice  of  the  proceedings  there  while  in  fieri  ; 
none  are  bound  by  them  but  those  who  are  parties  or  privies. 
This  purchaser,  then,  had  constructive,  not  actual,  notice  of  a 
judgment  entered  and  execution  issued  six  years  before;  the  de- 
fendant, Thomas  Peterson,  had  departed  this  life ;  the  plaintiff, 
as  the  executor  of  Opdike,  had  administered  his  estate — had  set- 
tled his  account ;  the  judgment  had  lain  dormant ;  the  execu- 
tion *had  not  been  executed ;  the  defendant  and  his  family  had 
continued  in  possession  of  the  land  ;  and  even  now,  when  pub- 
licly advertised  for  sale,  no  executor  appears  to  give  notice,  to- 
make  claim,  to  declare  his  right,  to  set  up  a  pretence  that  the 
judgment  is  not  satisfied.  Nothing  is  known  of  the  bill  in  chan- 
cery, or  the  injunction ;  or  if  heard  of  at  all  they  had,  like  the 
judgment  and  execution,  been  suffered  to  sleep  for  six  years.  Is 
there  anything  in  all  this  to  encounter  the  presumption  ?  Would 
we  not  as  rational  men,  without  the  aid  of  such  presumption,  say 
the  debt  must  have  been  paid  ? 

Again.  It  is  proved  that  Thomas  Peterson  had  become  secu- 
rity for  his  sons ;  had  met  with  losses ;  had  become  poor ;  had 
but  little  personal  property  about  him  ;  and  it  is  intended  to  de- 
duce from  this  that  he  was  unable  to  pay  the  judgment,  and  that 
the  presumption  of  law  cannot  prevail  against  this  evident  inabil- 
ity. But  it  should  be  considered  in  the  meantime  that  the  plain- 
tiff had  the  land  in  execution ;  that  by  answering  the  bill  in 
chancery,  if  the  right  was  with  him,  he  could  have  dissolved  the 
injunction  at  any  day  and  caused  that  land  to  be  sold  :  nay,  more, 
it  should  be  considered  that  by  a  standing  rule  of  that  court  no 
such  injunction  could  be  granted  after  verdict  and  judgment, 
without  a  deposit  of  the  amount  thereof,  with  costs,  so  that  he 
had  the  means  of  satisfaction  completely  in  his  own  power.  Can 
it  be  said,  then,  that  his  lying  still  for  six  years  in  this  situation — 
nay,  worse  than  lying  still,  for  he  was  attached  for  contempt  for 
not  answering — invalidates  the  presumption  ?  or  rather  is  it  not 
satisfactory  proof  either  that  the  suit  was  wholly  abandoned  upon 

*733 


2  SOUTH.]          FEBRUARY  TERM,  1820.  859 


Buchannan  v.  Rowland. 


facts  disclosed  in  the  bill,  as  indeed  well  it  might,  or  that  the  small 
balance  to  which  the  debt  was  incontestably  reduced  by  those 
facts,  was  satisfied  and  paid  ? 

But  further.  Let  us  suppose  there  had  been  no  such  laches 
on  the  part  of  the  plaintiff  up  till  the  time  of  the  sale ;  that  he 
had  prosecuted  with  due  diligence  ;  that  he  had  come  forward  at 
the  vendue  and  made  known  his  demand  and  that  the  purchaser 
had  had  perfect  knowledge  of  all  this,  yet  still  to  what  would  it 
amount  upon  the  question  which  we  are  discussing  ? 

If  a  man  make  a  deed  in  fee  of  his  lands  upon  a  full  consid- 
eration it  is  a  matter  perfectly  within  his  knowledge  and  imposes 
upon  him  the  strongest  obligation  to  deliver  up  the  possession  to 
the  purchaser,  so  if  he  make  a  mortgage  to  secure  money  *bor- 
rowed  or  a  bond  to  perform  a  duty,  he  knows  well  the  obligation 
of  these  instruments  and  how  they  are  to  be  discharged,  but  yet, 
if  they  shall  be  suffered  to  lie  twenty  years,  the  action  is  gone, 
his  knowledge  is  no  answer,  the  presumption  is  conclusive.  And 
if  conclusive  in  a  case  like  this  how  much  more  so  where  the 
party  has  stood  by  and  seen  the  land  passing  from  hand  to  hand, 
for  full  value,  and  the  labor  and  strength  of  the  purchaser  spent 
upon  it  without  notice,  without  claim,  without  pretence  of  right, 
for  twenty  years  and  more. 

Will  the  plaintiff  still  go  back  to  the  injunction  and  offer  that 
as  an  excuse  for  all  this  delay  ? 

The  injunction,  properly  considered,  instead  of  invalidating, 
strengthens  the  presumption  of  law  against  him.  He  had  re- 
covered a  judgment  upon  his  bond.  The  defendant  filed  a  bill 
in  equity  praying  to  be  relieved  against  this  judgment  upon  the 
allegations  of  certain  facts,  which,  if  true,  were,  in  the  opinion 
of  the  chancellor,  sufficient  to- entitle  him  to  relief;  he  called 
upon  him  to  answer  these  facts,  and,  in  the  meantime,  enjoined 
him  from  proceeding  at  law  at  his  peril,  thus  denying  the 
equity  of  his  claim,  refusing  the  payment  of  it,  and  set  ting 
him  at  defiance.  The  plaintiff  neither  answers  the  facts  nor 
dissolves  the  injunction  nor  proceeds  upon  his  execution,  nor 
even  makes  claim  under  it,  but  submits  in  silence  for  thirty  y-  ai  -. 
Now,  what  i.s  the  conclusion  ?  Is  it  not  irresistible  either  that 

*734 


860  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Buchannan  v.  Rowland. 


he  abandoned  the  suit  or  received  satisfaction  upon  just  and 
equitable  terms  ?  And  in  whichsoever  of  these  ways  it  may 
have  been  quieted  it  is  equally  within  the  presumption  of  law, 
for  that  is  a  presumption  of  satisfaction  rather  than  a  direct  pay- 
ment in  money.  And  it  is  a  presumption,  too,  founded,  not 
upon  the  punctuality  and  justice  and  ability  of  the  debtor,  but 
upon  the  acquiescence  of  the  creditor,  for  \vho,  having  the  means 
of  payment  completely  in  his  power,  would  let  a  debt  lie,  without 
€ither  principal  or  interest,  for  twenty  or  thirty  years  ?  And 
especially,  what  executor,  acting  as  a  trustee  for  others,  could 
possibly  do  so  ? 

Upon  the  whole,  then,  I  am  of  opinion  that  the  cause  was 
left  to  the  jury  upon  too  broad  ground ;  that  in  looking  for  posi- 
tive proof  of  direct  payment  in  money  they  have  overlooked 
that  which  the  law  considers  a's  equivalent  to  such  positive  proof, 
and  that,  therefore,  they  have  found  a  verdict  for  the  plaintiff, 
*when,  by  law,  it  ought  to  have  been  for  the  defendants,  and, 
therefore,  let  the  verdict  be  set  aside. 

ROSSELL,,  J.,  after  stating  the  facts  minutely,  added  :  On  this 
state  of  facts  the  defendants  apply  for  a  new  trial  for  the  follow- 
ing reasons : 

1.  The  verdict  was  contrary  to  evidence. 

2.  It  was  contrary  to  law. 

3.  The  jury  did  not  assess  the  damages. 

It  is  urged  by  the  counsel  for  the  plaintiff  below  that  this  case 
is  without  the  statute,  as  an  execution  had  been  issued  and  levied 
on  the  goods  and  lands  of  the  defendant,  value  $1 ;  that 
this  was  a  lien  on  the  lands,  against,  which  time  does  not  operate. 
A  judgment  is  a  lien,  and  there  is  no  magic  in  the  term  execution 
unexecuted;  it  creates  no  new  or  additional  lien  on  lands;  it 
gives  power  to  the  sheriff  to  seize  on  and  dispose  of  the  goods 
and  lands  of  the  defendant ;  but  if  this  seizure  is  not  made  for 
above  a  year,  the  execution  becomes,  I  presume,  a  dead  letter  in 
the  hands  of  the  officer,  and  it  is  necessary  to  sue  out  a  new  exe- 
cution bottomed  on  the  original  judgment,  which  only  can  give 
life  and  virtue  to  an  execution.  Destroy  the  judgment  and  the 

*735 


2  SOUTH.]  FEBRUARY  TERM,  1820.  861 


Buchannan  v.  Rowland. 


execution  falls,  of  course.  By  our  statute  ( Pat.  353 )  no  «ctre 
facias  is  allowed  to  issue  to  revive  a  judgment  after  twenty 
years,  except  under  the  usual  provisos  of  infancy  &c. 

The  principle  of  time  operating  as  a  bar  to  actions,  under  the 
statute  of  limitations,  is  not  contradicted.  For  although  the  jury 
may,  from  the  evidence,  be  clearly  of  opinion  that  the  demand 
of  the  plaintiff  has  never  been  satisfied,  they  are  bound  to  con- 
sider the  time  limited  by  the  statute  as  a  barrier  which  they  are 
not  permitted  to  pass.  Not  so  in  cases  not  embraced  by  the 
statute.  There,  however,'  courts  reasoning  from  analogy,  to 
quiet  lawsuits  and  to  secure  possessions  long  acquiesced  in,  have 
directed  juries  that  they  may  presume  payment  in  cases  of  bonds 
&c.,  or  the  right  of  defendants  to  real  estate  after  the  lapse  of 
many  years,  during  which  the  plaintiff  has  slept  over  his  rights 
and  suffered  the  defendant  to  exclusively  enjoy  all  the  benefits 
arising  from  the  premises.  After  a  lapse  of  eighteen  or  twenty 
years  bonds  will  be  presumed  to  be  paid ;  after  twenty  years  no 
judicial  proceeding  whatever  ought  to  be  set  aside  for  irregularity. 
7  Johns.  556.  In  4  Burr.  1962,  1963,  the  court  reasoned 
from  *analogy,  and  were,  on  full  consideration,  unanimously 
of  opinion  that  twenty  years  was  the  ne  plus  ultra,  beyond 
which  they  would  not  disturb  the  peaceable  possession  of  a 
franchise,  yet  a  franchise  is  a  branch  of  the  royal  prerogative. 
In  neither  of  these  cases  was  there  any  statute  of  limitations 
operating  as  a  bar.  If,  in  any  case,  the  court  would  be  justified 
in  limiting  the  time  beyond  which  actions  should  not  be  brought, 
it  would  be  in  one  like  the  present. 

The  bill  of  the  defendant  was  filed  in  chancery  and  an  injunc- 
tion issued  in  1789.  We  are  bound  to  believe  that  this  bill  con- 
tained matter  sufficient  to  justify  the  issuing  the  injunction. 
Even  the  plaintiff  seems  to  have  been  well  aware  of  this,  as  he 
put  in  no  answer,  nor  took  a  single  step  to  get  this  injunction 
dissolved  until  1813 — a  lapse  of  twenty-three  years — when  the 
original  defendant  had  been  long  dead,  and  the  lands  passed 
through  the  hands  of  several  bona  fide  purchasers,  and  that,  too, 
with  the  alleged  knowledge  of  the  executor  of  the  obligee  living 
near  the  premises,  yet  the  whole  proceeding  continued  to  sleep  in 

*736 


862  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Sayre  v.  Reynolds. 

peace.  The  court,  under  such  circumstances,  ought  to  have  in- 
structed the  jury  that  they  had  the  power  to  presume  a  satisfac- 
tion of  the  original  judgment  against  the  Petersons  ;  for  want  of 
this  they  might  reasonably  suppose  that  without  absolute  proof 
of  payment  to  the  plaintiff  or  his  representative  they  were  bound 
to  find  for  him. 

The  sheriff,  by  his  levy,  obtained  a  special  property  in  the 
goods  of  the  defendant,  which  could  not  be  divested  but  by  the 
total  destruction  of  the  judgment  on  which  his  execution  was 
founded.  The  injunction  only  forbade  the  sale  until  the  rights  of 
the  parties  should  be  finally  determined.  The  sheriff  was  liable 
for  the  amount  of  the  goods  levied  on,  for  which  he  must  account 
with  the  plaintiff,  at  least  for  the  value  he  himself  put  on  them, 
yet  the  jury  paid  no  attention  to  this  legal  provision  of  the 
statute. 

On  the  whole  of  this  case  I  am  of  opinion  that  a  new  trial 
should  be  awarded. 

Verdict  set  aside. 


*D.  SAYKE  v.  REYNOLDS  and  CAMP,  administrators  of 
BROOKFIELD. 

Proof  of  note  appearing  to  be  altered  or  forged,  (o) 
In  error. 

This  cause  was  tried  at  January  term,  1819,  and  a  bill  of  ex- 
ceptions taken  by  the  defendant  in  proper  person.  The  declara- 

(a)  President  &c.  of  Cumberland  Bank  v.  Hall,' 1  Hal.  215  ;  Den  v.  Wright,  3 
Hul.  175  ;  Richman,  v.  Richman,  5  Hal.  117  ;  Vanauken  v.  Hornbeck,  2  Or.  179  ; 
Den,  Farlee  v.  Farlee,  1  Zab.  280;  North  River  &c.  Co.  v.  Shrewsbury  Church,  2 
Zab.  425 ;  Reformed  Dutch  Church  v.  Ten  Eyck,  1  Dutch.  40  ;  Hunt  v.  Gray,  6' 
Vr.  227  ;  Crawford  v.  Bertholf,  Sax.  461 ;  Oest  v.  Flock,  1  Gr.  Ch.  115  ;  White 
v.  Williams,  2  Gr,  Ch.  385 ;  Goodfellow  v.  Tnslee,  1  Beats.  355 ;  Lewis  v.  Schenck, 
3  C.  E.  Or.  459. 

*737 


2  SOUTH.]  FEBRUARY  TERM,  1820.  863 

Sajre  r.  Reynolds. 

t  i»n  was  in  the  usual  form,  upou  a  promissory  note  dated  2d  of 
September,  1811.  The  defendant  pleaded  the  general  issue.  The 
bill  of  exceptions  states  that  "  the  plaintiffs  offered  in  evidence  a 
promissory  note  and  proved  the  execution  of  the  same  by  the 
subscribing  witnesses  thereto.  The  defendant  objected  to  the 
said  evidence."  The  court  admitted  it  ;  the  note  was  read  to 
the  jury,  and  the  bill  of  exceptions  taken  and  sealed.  The  note 
accompanied  the  return  of  the  writ,  and  by  it  it  appeared  that 
the  word  first  in  the  date  had  been  erased,  and  the  word  second 
written  over  it;  and  that  several  payments  had,  at  different 
times,  been  made  by  defendant  upon  it. 

Scudder,  for  plaintiff.  The  alteration  in  this  note  is  in  a 
material  part,  and  if  made  without  the  consent  of  the  maker,  is 
a  forgery  ;  and  as  it  appears  upon  the  face  of  it,  it  ought  to  have 
been  proved  to  be  done  before  the  signing,  otherwise  it  is  fatal 
to  the  claim  of  the  plaintiffs  ;  proving  the  handwriting  of  such 
a  note  is  not  sufficient  to  make  it  evidence.  5  Jac.  L.  Die.  384  > 
11  Ooke  27;  5  Coke  23;  2  Jac.  L.  Die. 


Halsey,  in  answer.  The  bill  of  exceptions  states  that  the 
plaintiff  below  proved  the  execution  of  the  note,  and  this  court, 
on  this  writ,  must  infer  that  it  was  the  legal  execution.  The 
variance  between  the  note  and  the  declaration  is  not  fatal  ;  the 
note  is  sufficiently  stated.  An  alteration,  since  it  was  made,  is 
not  to  be  presumed  ;  it  is  to  be  proved  by  the  defendant.  Be- 
sides, payments  have  been  made  on  it  for  several  years  ;  and  this 
shows  an  acquiescence  in  the  alteration. 

Opinion  of  the  court. 

SOUTHARD,  J. 

It  is  insisted  that  the  alteration  in  the  note  without  the  con- 
sent of  the  maker  was  a  forgery  and  made  the  note  void  ;  and  it 
must  be  considered  as  a  forgery  until  the  alteration  is  accounted 
for.  But  however  true  the  law,  the  argu*ment  were  better 
addressed  to  the  jury  than  the  court.  The  proof  of  the  note  as 

*738 


864  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Hendricks  ads.  Mount. 


stated  in  the  bill  of  exceptions  was  such  as  to  demand  its  admis- 
sion ;  after  which,  its  corruption  was  a  fit  matter  for  considera- 
tion. But  it  appeal's  to  me  that  either  as  matter  of  law  or  of 
fact  but  little  doubt  on  the  subject  could  be  felt  by  either  court 
or  jury.  The  suit  was  brought  by  administrators  de  bon.  non. 
The  alteration  could  produce  no  effect  on  the  parties,  except  to 
make  the  note  bear  interest  one  day  later  and  save  the  defendant 
from  the  payment  01'  a  few  cents ;  and  there  were  several  en- 
dorsements on  the  back  of  the  note  proving  that  defendant  had 
made  several  payments  upon  it  long  after  its  date.  Under  such 
circumstances  to  presume  a  forgery  would  be  a  violation  of  all 
probabilities. 

There  must  be  judgment  for  the  defendant  in  error. 


LUTHER  B.  HENDRICKS  ads.  R.  MOUNT  and  J.  C.  CRANE. 

1.  Trover  against  depositary. 

2.  Eill  of  sale  fraudulent  is  void  against  creditors  but  binding  between  the 
parlies,  (a) 

3.  Depositary  cannot  take  advantage  of  the  fraud.  (b) 

4.  Jury  decide  the  question  of  fraud,  (c) 

5.  Seller  is  a  competent  witness  if  released  by  plaintiff,  (d) 

(a)  See  Den  v.  Moore,  ante  475  /   Robinson  v.  Monjoy,  2  Hal.  173 ;  HaU  v. 
Snowhill,  2  Or.  16;    Den,  Wooden  v.  Shotwell,  3  Zab.  466,  4  Zab.  789;  Den, 
Obert  v.  Hammel,  3  Harr.  74  ;  Owen  v.  Arvis,  2  Dutch.  23;    Chureh  v.  Muir, 
4  Vr.  818;  Baldwin  v.  Campfield,  4  Hal.  Ch.  600,  891;    Tantum  v.  Miller,  3 
Stock.  551 ;  Danbury  v.  Robinson,  1  McCart.  213  ;  Sayre  v.  Fredericks,  1  C.  E. 
Or.  205;  Lokerson  v.  Stillwell,  2  Beas.  357 ;    Eyre  v.  Eyre,  4  C.  E.  Or.  4% ; 
Gardner  v.  Short,  4  C.  E.   Or.  S41 ;   Marlatt  v.  Warwick,  4  C.  E.  Or.  440; 
Cutler  v.  Tuttle,  4  C.  E.  Or.  550  ;  Alwood  v.  Impson,  5  C.  E.  Or.  150;  Metro- 
politan Bank  v.  Durant,  7  C.  E.  Or.  35,  9  C.  E.  Or.  556  ;    Servis  v.  Nelson,  1 
McCart.  94;  Jones  v.  Adams,  8  C.  E.  Or.  113 ;  cases  cited  post  743. 

(b)  Hampton  v.  Sunsher,  1  South.  66;    Evans  v.  Herring,  3   Dutch.  243; 
Miller  ads.  Pancoast,  5  Dutch.  250. 

(c)  diver  v.  Applegate,  ante  481 ;   Parrel  v.  Colwell,  1  Vr.  129 ;    and  see 
Watkins  v.  Pintard,  Coxe  378;  Osborne  v.  Tunis,  1  Dutch.  634. 

(d)  See  Sherron  v.  Humphreys,  2  Or.  217  ;  Letson  v.  Dunham,  2  Or.  307. 


2  SOUTH.]  FEBRUARY  TERM,  1820.  865 


Hendricks  ads.  Mount. 


In  case. 

This  was  a  writ  of  error  to  the  court  of  common  pleas  of 
Essex.  The  cause  was  tried  there  in  January,  1819.  The  plain- 
tiffs produced,  proved  and  read  in  evidence  a  bill  of  sale,  dated 
the  6th  of  November,  1816,  from  one  Elijah  Day  to  them,  with 
an  inventory  of  certain  goods  and  merchandise  thereto  annexed, 
l>eing  the  goods  stated  in  the  declaration.  They  then  offered 
Day  as  a  witness,  to  whose  competency  the  defendant  objected, 
and  in  support  of  the  objection  offered  and  read  in  evidence  a 
petition  of  his,  as  an  insolvent  debtor,  to  the  court  of  common 
pleas  of  the  county  of  Essex,  dated  the  18th  day  of  November, 
1816  ;  also  a  schedule  and  inventory  thereunto  annexed;  and  a 
certain  order  or  decree  of  the  court  for  his  discharge,  dated 
the  23d  of  December,  1816.  Also  a  deed  of  assignment  made 
by  him  to  one  William  R.  Williamson,  in  pursuance  of  the  said 
order  or  decree  dated  the  23d  of  December,  1816.  The  plaintiffs 
then,  and  before  the  court  had  given  any  opinion,  tendered  and 
delivered  to  said  Day  a  deed  of  release  bearing  date  the 
day  of  ,1819,  and  again  offered  him  as  a  witness,  and  the 

defendant  again  objected  to  his  admission,  which  objec*tion  the 
court  overruled,  and  permitted  him  to  be  sworn,  whereupon  he 
did  testify  that  sometime  in  July,  1816,  he  received  of  W.  R. 
Williamson,  Esq.,  now  deceased,  the  sum  of  $  137,  in  trust,  to 
be  delivered  to  Robert  Mount,  in  the  city  of  New  York,  for 
whom  W.  R.  Williamson,  who  was  an  attorney-at-law,  had  col- 
lected the  same.  A  paper  in  the  handwriting  of  W.  R.  William- 
son, Esq.,  containing  a  statement  of  said  money  and  of  the  de- 
livery thereof  to  Day  for  Mount,  was  then  produced,  and  being 
admitted  was  read  in  evidence.  Day  then  further  testified  that 
having  occasion  for  the  use  of  said  money  he  had  applied  it  to 
his  own  use,  then  intending  shortly  to  have  replaced  it  and  paid 
it  over  to  Mount,  but  that,  in  fact,  he  never  had  so  paid  it  That, 
on  the  6th  day  of  November,  1816,  he  was  indebted  to  John  C. 
Crane,  the  other  plaintiff,  upon  a  promissory  note  bearing  <lat«- 
the  1st  of  July,  1816,  for  $175,  payable  twelve  months  altrr 
date,  which  note  was  produced  and  read  in  evidence.  That  in 
*739  55 


866  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Hendricks  ads.  Mount. 


the  spring  of  1815  he  commenced  business  as  a  storekeeper  in 
Elizabethtown,  and  soon  afterwards  took  one  Thomson  into 
partnership  with  him  ;  that  shortly  after  Thomson  failed,  leaving 
a  considerable  partnership  debt  unpaid ;  that  after  Thomson's 
failure  he  continued  in  business  on  his  own  account  until  the  fall 
of  1816,  when  he  became  embarrassed  and  was  committed  to 
gaol  in  the  borough  of  Elizabethtown,  on  an  execution  at  the 
suit  of  Halsey  Munson,  and  obtained  the  privilege  of  the  limits 
of  the  prison.  That  on  the  day  of  November,  1816, 

being  indebted  to  defendant  in  the  sum  of  $440  or  thereabouts, 
partly  on  his  own  account  and  principally  on  account  of  Day 
&  Thomson,  he  made  an  assignment  or  bill  of  sale,  by  way  of 
mortgage,  of  all  his  household  furniture  and  goods,  to  the  defend- 
ant to  secure  to  him  the  said  money,  which  bill  of  sale  was  pro- 
duced and  read  in  evidence;  that  on  the  7th  day  of  April,  1818, 
not  having  paid  defendant  the  money  intended  to  be  secured  to 
him  by  said  assignment,  he  delivered  to  him  all  the  goods  and 
furniture  contained  in  the  said  bill  of  sale  in  satisfaction  of  the 
said  debt,  and  took  his  receipt  for  the  same,  which  was  produced 
and  read ;  that  while  he  was  on  the  limits  and  before  the  bill  of 
sale  was  made  to  the  plaintiffs,  and  after  the  defendant  had  been 
secured  by  an  assignment  of  the  witness'  furniture,  defendant 
came  to  witness  and  proposed  or  recommended  to  him  to  take 
some  of  his  goods  out  of  the  *store  and  put  them  away,  as  other- 
wise he  would  have  to  give  them  all  up  to  his  creditors ;  that 
witness  told  him  he  did  not  wish  to  take  any  more  of  them  than 
would  be  sufficient  to  secure  to  the  plaintiffs  the  moneys  he  owed 
them;  that  in  the  night  of  the  6th  of  November,  1816,  or  soon 
afterwards,  about  eleven  o'clock  at  night,  he  went  to  his  store  in 
company  with  the  plaintiff,  John  C.  Crane,  and  the  defendant, 
and  that  they  measured  and  inventoried  the  goods  in  the  decla- 
ration and  in  the  invoice  to  the  plaintiff's  bill  of  sale  annexed, 
mentioned ;  that  they  packed  up  the  goods  so  invoiced  and  re- 
quested the  defendant  to  take  charge  of  them ;  that  he  at  first 
declined  but  at  last  consented  that  they  might  be  put  in  his  cellar ; 
that  the  cask  was  then  put  in  his  cellar,  and  it  was  twelve 
o'clock  at  night  before  they  were  done ;  that  he  went  at  night 

*740 


2  SOUTH.]  FEBRUARY  TERM,  1820.  867 


Hendricka  adf>.  Mount. 


because  he  did  not  wish  to  be  seen  off  the  limits;  that  he 
afterwards  made  an  assignment  of  all  the  rest  of  his  goods 
and  property  in  the  store  to  Jonathan  B.  Dayton  and  , 

for  the  benefit  of  his  individual  creditors,  as  he  thought  he 
was  bound  to  pay  them  out  of  his  own  property  in  prefer- 
•ence  to  the  creditors  of  Day  &  Thomson.  Being  cross-examined 
he  stated  that  he  could  not  tell  whether  the  bill  of  sale  to  plain- 
tiffs was  executed  the  day  it  bears  date,  but  thought  it  was  de- 
livered to  John  C.  Crane  the  first  time  he  saw  him  after  the 
eight  spoken  of  and  before  he  was  discharged  from  confinement. 
Witness  supposed,  from  what  he  said  to  the  defendant  previous 
to  putting  up  the  goods  and  from  what  passed  when  the  goods 
were  invoiced,  that  the  defendant  knew  and  understood  that  they 
were  to  secure  and  satisfy  to  the  plaintiffs  the  moneys  due  them. 
In  the  summer  of  1817,  he  went  in  defendant's  cellar,  in  com- 
pany with  him,  to  see  whether  the  goods  were  not  injured  by 
lying.  The  last  four  or  five  articles  on  the  invoice,  being  of  a 
perishable  nature,  were  used  by  defendant,  with  his  consent,  and 
some  of  them  by  himself.  Being  asked  whether  he  was  not  in- 
debted to  John  C.  Crane  in  the  sum  of  $1 75  at  the  time  he  gave 
him  the  note,  he  answered  that  he  could  not  say  that  he  was ;  he 
supposed  the  note  would  charge  him  for  that  amount ;  he  did 
not  think  himself  he  owed  Crane  so  much,  but  there  were  con- 
siderable accounts  between  them.  Crane  made  up  the  account 
and  said  the  balance  was  $175,  but  he  did  not  think  there  was 
quite  so  much  due,  but  could  not  say,  certainly,  how  much. 
Defendant  *then  gave  in  evidence  a  bond  and  mortgage  of  lands, 
given  by  Day  to  him,  for  $750,  bearing  date  the  1st  of  May, 
1815.  Plaintiff  proved  a  demand  and  refusal  of  the  goods  at 
two  or  three  different  times,  about  the  20th  or  25th  of  May.  The 
writ  in  this  cause  was  issued  on  or  after  the  20th  of  May,  1818. 
The  testimony  being  closed,  the  defendant,  by  his  counsel,  called 
on  the  court  to  charge  the  jury  that  if  they  should  find  that  the 
bill  of  sale  was  fraudulently  made  by  Day  to  the  plaintiffs,  that 
then  they  were  not  entitled  to  recover  of  the  defendant ;  where- 
upon the  court  charged  the  jury  that  whether  the  bill  of  sale  was 
fraudulent  or  not  was  for  their  determination  ;  but  that  if  the 

*741 


868  NEW  JERSEY  SUPREME  COURT.     [5 


Hend  ricks  ads.  Mount. 


plaintiffs  and  Day  had  contrived  it  fraudulently  between  them, 
for  covinous  purposes,  it  was,  nevertheless,  valid  as  between  those- 
who  were  the  parties  to  it ;  that  the  statute  had  indeed  declared 
it  void  as  against  the  creditors  of  Day,  and  if  fraudulent,  it  was 
absolutely  void  as  against  them,  whenever  they,  or  any  of  them, 
should  seize  the  goods,  by  legal  process,  as  the  property  of  Day  ; 
but  that  as  to  the  defendant,  they  were  only  stored  in  his  cellar, 
without  a  claim  of  title  to  them  in  him ;  and  that  whether  the 
bill  of  sale  was  or  was  not  fraudulent  as  to  creditors,  the  plain- 
tiffs had  a  right  to  recover  the  value  against  the  defendant.  To 
which  opinion  of  the  court  the  defendant  excepted,  and  also  to 
the  admission  of  Day  as  a  witness. 

There  was  a  verdict  and  judgment  for  the  plaintiff. 

Upon  the  argument,  two  grounds  of  error  were  principally 
urged.  1.  The  admission  of  Day  as  a  witness;  and,  2.  The 
charge  of  the  court. 

Scudder.  Day  was  not  a  competent  witness.  He  made  a  bill 
of  sale  and  thus  gave  an  implied  warranty.  This  may  be  re- 
leased so  far  as  relates  to  the  bill  alone,  but  if  the  consideration 
of  it  be  also  released,  the  debt  and  all  claim  on  the  goods  are  re- 
leased with  it.  Again :  He  could  not  give  these  plaintiffs,  or 
any  other  creditors,  a  preference  by  a  payment  of  the  debt  in 
this  way.  Pat.  167  §  8.  Under  the  bankrupt  laws,  if  an  as- 
signment be  made  to  pay  one  creditor,  in  the  view  of  becoming 
insolvent,  it  is  void.  3  Mass.  325;  Bank.  Law  U.  S.  §  8 ;  3 
Wils.  4? >  4  Wheat.  194'  Our  insolvent  law  is  the  same  in 
principle.  Its  design  is  to  give  all  creditors  an  equal  share  of 
the  debtor's  property. 

*2.  The  charge  was  contradictory  in  itself,  and  embarrassing 
to  the  jury.  It  declared  that  the  bill,  though  fraudulent,  is 
binding  between  the  parties  to  it.  This  is  not  so.  Pat.  154- 
This  statute  has  not  altered  the  common  law.  Conveyances 
were  always  void  if  fraudulent.  A  party  to  a  fraudulent  deed 
cannot  claim  any  benefit  under  it.  4-  Johns.  598 ;  Cowp.  434- 
If  this  deed  was  fraudulent,  the  jury  ought  to  have  been  in- 
structed that  the  plaintiff  could  not  recover. 

*742 


-2  SOUTH.]          FEBRUARY  TERM,  1820.  869 


Hendricks  ads  Mount. 


Attoi'ney- General,  in  answer.  The  release  takes  away  all  in- 
terest arising  from  the  bill  of  sale,  and  Day  was  therefore  not 
interested  in  any  view. 

2.  The  charge  states  that  the  bill,  if  fraudulent,  is  void  against 
creditors ;  but  Hendricks  can  claim  no  benefit  from  this ;  he  was 
not  a  creditor.  It  also  correctly  states  that  the  bill,  though 
fraudulent,  is  binding  between  the  parties  to  it.  Oo.  Jac.  W7  ; 
Fonb.  264  >  1  Johns.  161.  Again  :  Under  our  insolvent  laws, 
-a  debtor  may  prefer  one  creditor  to  another.  This  Is  a  principal 
distinction  between  them  and  the  bankrupt  laws.  Woodruff  v. 
Ro/,  1  Fern.  399;  Rob.  Fr.  Gonv.  422,  J&3. 

Opinion  of  the  court. 

SOUTHARD,  J. 

If  I  understand  this  case  correctly,  Hendricks,  who  was  the 
defendant  below,  had  no  claim  of  any  kind  to  a  property  in  the 
goods  for  which  the  action  was  brought.  Day,  who  once  owned 
them,  had  been  indebted  to  him  about  $440,  but  had  secured  that 
debt  by  a  mortgage  on  other  property  and  had  eventually  paid 
the  debt  by  transferring  that  property,  and  had  received  a  receipt 
and  discharge  in  full.  Hendricks  was,  therefore,  not  a  creditor ; 
he  could  not,  in  this  action,  set  up  the  rights  of  a  creditor  by  way 
•of  defence.  The  goods  had  merely  been  left  with  him  for  safe- 
keeping, and  for  safe-keeping  only.  He  was  a  mere  depositary, 
^nd  had  only  a  depositary's  rights. 

It  is  further,  entirely  manifest,  from  the  state  of  the  case,  that 
-when  he  received  the  goods  he  knew  the  nature  of  the  transfer 
which  had  been  made  of  them.  He  received  them  as  the  prop- 
erty of  Mount  and  Crane.  They  were  deposited  with  him  for 
their  benefit  and  to  be  under  their  control.  Has  he  a  right,  then, 
when  they  claim  them,  when  they  demand  the  possession  of  them, 
to  say,  "  Your  title  is  defective,  and  though  I  have  no  claim  you 
shall  not  have  them  ?"  I  think,  clearly  not.  In  the  first  place, 
*he  received  them  with  the  express  condition  to  keep  for  the 
benefit  of  the  plaintiff.  He  must  comply  with  his  contract.  In 
the  second  place,  although  I  think  he  might,  in  such  case,  set  up 

*743 


870  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Hendricks  ads.  Mount. 


a  title  in  himself,  of  which  he  was  ignorant  at  the  time  of  the  de- 
posit, yet  he  cannot  set  up  a  right  in  some  third  person,  much 
less  may  he  defend  himself  by  saying  that  there  are  creditors  to 
whom,  in  justice,  these  goods  ought  to  go  to  satisfy  their  claims. 
But  it  is  argued  that  the  bill  of  sale  which  transferred  the  goods 
to  Mount  and  Crane  was  in  fraud  of  creditors,  and,  therefore, 
ought  to  avail  them  nothing.  Now,  although  we  were  to 
admit  the  fraud  in  the  execution  of  the  bill,  yet  I  do  not  see  how 
it  can  avail  this  defendant.  The  parties  to  that  bill  are  willing 
to  abide  by  it ;  no  one  has  a  right  to  dispute  its  validity  but  he 
who  is  interested  in  it.  This  defendant  is  not  so  interested.  He 
is  a  perfect  stranger  so  far  as  relates  to  any  rights  under  it.  And 
although  a  creditor  may  dispute  the  legality  of  an  instrument,, 
yet,  as  between  the  parties  to  it,  a  stranger  has  no  right  to  inter- 
fere. We  recognize  the  right  of  no  man,  iu  this  way,  to  turn 
Quixote  and  fight  against  fraud  for  justice'  sake  alone,  (a)  In 
the  mouth,  therefore,  of  this  defendant,  I  do  not  perceive  the 
right  to  set  up  this  defence,  even  if  it  were  true  in  fact.  But, 
upon  the  case,  it  is  not  very  clear  that  there  was  any  fraud  in  the 
creation  of  this  bill.  Mount  and  Crane  appear  to  have  been 
both  creditors ;  one  of  them  a  creditor  of  a  most  peculiar  kind. 
Is  there  anything  to  prevent  the  debtor  from  securing  their 
debt,  even  if  by  so  doing  he  should  defeat  the  claims  of  other 
creditors?  It  is  every  day  done  under  our  insolvent  system, 
and  every  day  sustained  in  our  courts  of  justice.  And  however 
improper,  in  an  honest  and  moral  view  it  may  sometimes  be, 
still  it  is  legal.  (6)  If,  then,  Mount  and  Crane  were  truly  and 
bona  fide  creditors,  Day  had  a  right,  before  he  presented  his 
petition,  to  secure  their  claim.  Whether  they  were  such  creditors 
and  whether  the  bill  of  sale  were  made  before  the  petition  was 

(a)  Melville  v.  Broum,  1  Harr.  366. 

(b)  Tillou  v.  Britton,  4  Hal.  136;  Sharp  v.  Tease,  4  Hal.  356;  Owen  v.  Arvis, 
2  Dutch.  23  ;  Gairet8<m  v.  Kane,  3  Dutch.  209  ;  Douyhty  v.  King,  2  Stock.  396; 
Coley  v.  Coley,  1  McCart.  350;  Benedict  v.  Benedict,  2  McCart.  151 ;  Demarest  v. 
Terhune,  3  C.  E.  Or.  532;  Tantum  v.  Green,  6  C.  E.  Gr.  364;  National  Bank, 
&e.  v.  Sprague,  6  C.  E.   Gr.  530;  Garretson  v.  Brown,  2  Dutch.  425,  3  Dutch. 
644;  Jones  v.  Naughright,  2  Stock.  298;  Stratton  v.  Allen,  1  C.  E.  Gr.  229. 


2  SOUTH.]  1  KBRUARY  TERM,  1820.  871 


Hendricks  ads.  Mount. 


presented,  were  inquiries  for  the  jury.     The  fair  inference,  from 
the  evidence,  is  in  their  favor  on  both  points. 

Let  us  now  look  to  the  charge  against  which  complaint  is 
made,  and  see  if  it  be  erroneous  as  applied  to  these  facts  and 
principles.  I  understand  the  court  to  lay  down  four  positioiiM. 
1.  That  the  fact  whether  the  bill  of  sale  was  fraudulent,  was, 
under  the  evidence,  for  the  consideration  and  decision  of  the 
*jury.  2.  That  if  the  jury  believed  the  bill  of  sale  to  be  fraud- 
ulent, it  was  void  as  against  creditors,  whenever  they  should 
legally  contest  it,  and,  as  against  them,  could  confer  no  rights 
on  the  plaintiff.  3.  That,  as  between  the  parties,  it  was  binding. 
4.  That  the  defendant  having  no  interest  in  the  goods,  or  con- 
cern in  the  transaction,  had  no  right  to  interfere  and  set  up  the 
fraud,  even  if  it  existed. 

Upon  all  these  points  the  court  was  clearly  and  unquestionably 
right,  and  it  is  scarcely  necessary  to  call  in  the  aid  of  authorities 
to  prove  them.  The  charge,  in  substance,  was  correct. 

Upon  the  question  of  interest  in  the  witness  Day,  I  think 
there  is  no  necessity  for  argument  or  illustration.  Whatever 
doubt  might  have  been  raised  before  the  execution  of  the  release, 
none  could  be  fairly  raised  after  it  was  executed.  The  argument 
of  the  counsel  that  the  release,  if  it  did  not  discharge  the  con- 
sideration of  the  bill,  left  the  interest  still  existing,  and,  if  it  did 
discharge  the  consideration,  destroyed  the  bill,  and,  with  it,  the 
rights  of  the  plaintiff  will  scarcely  be  insisted  on  when  he  shall 
more  deliberately  have  investigated  its  force.  The  release  merely 
relieves  Day  from  all  claim  by  Mount  and  Crane ;  but  it  surely 
does  not  restore  to  him  the  property  which  he  had,  long  before, 
transferred  to  them.  He  had  sold  the  goods  in  discharge  of  his 
debt.  The  bill  was  the  mere  evidence  of  the  sale  and  transfer, 
and,  even  if  the  bill  were  destroyed,  their  right  to  the  goods 
under  the  sale  would  not  be  destroyed  with  it. 

Judgment  must,  therefore,  be  rendered  for  the  defendants  in 
error. 

*744 


872  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


State  v.  Gustin. 


THE  STATE  t>.  DAVID  GUSTIN. 

1.  An  indictment  for  forgery  must  set  out  the  tenor  of  the  instrument 
forged,  (a) 

2.  Form  of  return  to  certiorari.  (b) 

3.  Form  of  record,  (c) 

An  indictment  for  forgery  was  found  against  the  defendant  in 
the  oyer  and  terminer  of  Essex  county,  at  September  sessions, 
1813.  At  April,  1814,  the  defendant  pleaded  not  guilty,  and, 
before  trial  was  had,  a  certiorari  was  presented  to  remove  the 
indictment  to  this  court.  When  the  writ  was  returned,  Halsey, 
for  defendant,  prayed  leave  to  withdraw  his  plea  of  not  guilty, 
that  he  might  move  to  quash  the  indictment.  Leave  was  granted, 
the  plea  withdrawn,  and  motion  made  and  argued  November 
term,  *1819.  The  material  part  of  the  indictment  was  as  fol- 
lows :  The  jurors  &c.,  present  that  heretofore  &c.,  one  David 
Gustin  and  Daniel  Harker  &c.,  both  of  the  county  of  Sussex, 
drew  their  joint  promissory  note,  bearing  date  on  the  day  and 
year  aforesaid,  and  made  payable  to  John  Gustin,  esquire,  or 
order,  at  the  New  Brunswick  Bank,  ninety  days  after  date,  for 
the  sum  of  $500,  without  defalcation  or  discount,  for  value  re- 
ceived, which  said  promissory  note  was  endorsed  by  the  said 
John  Gustin,  esquire,  and  one  John  Ogden,  esquire,  and  de- 
livered to  the  said  David  Gustin  for  the  purpose  of  enabling 
him,  the  said  David  Gustin,  to  get  the  said  note  discounted  at 
the  said  New  Brunswick  Bank.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present  that  the  said  David 
Gustin,  late  of  the  township  of  Elizabeth,  in  the  county  of  Essex, 
afterwards,  to  wit,  on  the  5th  day  of  October,  in  the  year  afore- 

(o)  See  State  v.  Qustin,  post  749;  State  v.  Potts,  4  Hoi.  26;  State  v.  Farrand, 
3  Hal  S3S;  Stale  v.  Robinson,  1  Harr.  507 ;  Stone  v.  State,  Spenc.  401,  404; 
State  v.  Weller,  Spenc.  522  ;  Berrian  v.  State,  2  Zab.  9,  679. 

(b)  See  State  v.  Hunt,  Coxe  287 ;  State  v.  Webster,  5  Hal.  295;  Mann  v.  Drost, 
3  Harr.  336. 

(c)  State  v.  Jones,  4  Hal.  371;  State  v.  Price,  6  Hal.  209. 

*745 


2  SOUTH.]          FEBRUARY  TERM,  1820.  873 


State  r.  Gustin. 


said,  had  the  said  note  in  his  possession,  and  that  he,  the  said 
David  Gustin,  on  the  same  5th  day  of  October,  in  the  year  afore- 
said, at  the  township  of  Elizabeth,  in  the  county  of  Essex,  and 
within  the  jurisdiction  of  this  court,  did  falsely,  willfully  and 
knowingly  alter,  and  cause  and  procure  to  be  altered,  and  act 
and  assist  in  altering  the  said  promissory  note,  before  mentioned 
and  described,  by  altering  the  sum  to  be  paid  by  the  said  note 
from  $500  to  $5,000,  so  that  the  said  promissory  note  might 
purport  to  be  for  the  payment  of  the  false  sum  of  $5,000,  instead 
of  the  sum  of  $500,  for  which  sum  the  same  was  drawn  payable  ; 
which  said  alteration  was  made  without  the  knowledge  or  consent 
of  the  said  Daniel  Barker,  John  Gustin  and  John  Ogden,  or 
either  of  them,  and  with  intent  to  defraud  the  said  Daniel 
Harker,  John  Gustin  and  John  Ogden,  contrary  to  the  statute 


Hahey.  The  tenor  is  not  set  out,  nor  any  fact  to  show  that 
it  was  impossible  to  set  it  out.  8  Mass.  107,  111  ;  Davis  304  > 
1  Star.  98. 

Chetwood.  There  is  no  case  or  form  to  be  found  in  which  the 
loss  or  destruction  of  the  instrument  is  set  out.  It  is  sufficient, 
if  the  indictment  show  that  it  is  an  instrument  of  which  forgery 
may  be  committed,  as  that  it  is  a  promissory  note.  Pal.  216  ; 
3  Mass.  85;  1  Star.  66,  67,  227,  228,  229;  Cam.  Dig.  "In- 
dictment;" G.  1,5  ;  2  Star.  904;  Leach  79,  92;  2  Bl.  JR.  790. 

*SOUTHARD,  J. 

This  indictment  charges  that  on  the  28th  of  September,  1812, 
David  Gustin  and  Daniel  Harker  made  a  joint  promissory  note, 
payable  ninety  days  after  date,  at  the  New  Brunswick  Bank,  to 
John  Gustin  or  order,  for  $500,  which  was  endorsed  by  the  said 
John  Gustin  and  by  John  Ogden,  and  delivered  to  David  Gustin 
to  be  discounted,  and  on  the  5th  of  October  he  altered  it  by 
making  it  promise  to  pay  $5,000,  instead  of  $500  &c.  The 
objection  to  it  is  that  the  tenor  of  the  note  is  not  set  out,  nor  any 
circumstances  showing  that  it  was  not  in  the  power  of  the  jury 

*746 


874  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


State  v.  Gustin. 


to  set  it  out.  And  the  objection  is  well  taken.  The  instrument 
must  be  shown,  that  the  court  may  see  whether  it  be  an  instru- 
ment of  which  there  can  be  forgery  by  the  statute.  There  is  a 
distinction  between  the  indictment  itself  and  the  proof  necessary 
to  sustain  it.  If  the  tenor  be  set  out,  proof  that  the  instrument 
is  not  within  the  power  of  the  prosecutor  is  sufficient  to  authorize 
other  proof  as  to  its  contents ;  and  proof  which  will  justify  con- 
viction. I  think  the  motion  must  prevail. 

THE  COURT.     Let  the  indictment  be  quashed. 

As  difficulty  has  frequently  arisen  from  the  manner  in  which 
the  records  of  judgments  upon  indictments  are  made  up,  and 
also  from  the  manner  in  which  returns  are  made  to  certiorari  to 
remove  indictments,  the  reporter  subjoins  the  form  of  a  return 
and  judgment  in  the  foregoing  case,  which  were  cautiously  pre- 
pared, and  have  been  sanctioned  by  the  court ;  and  which,  with 
the  alterations  adapted  to  the  particular  cases,  may  serve  to  pre- 
vent error  and  difficulty  hereafter. 

Form  of  Record  to  be  Returned  with  Certiorari. 

Essex,  to  wit :  Be  it  remembered  that  at  a  court  of  oyer  and 
terminer  and  general  gaol  delivery  holden  at  Newark,  in  and  for 
the  said  county  of  Essex,  on  the  third  Tuesday  in  September,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  thirteen, 
before  the  Honorable  William  S.  Pennington,  Esq.,  third  justice 
of  the  supreme  court  of  judicature,  and  John  Lindsley  and 
Aaron  Munn,  Esqs.,  and  others,  their  fellows,  judges  of  the 
inferior  court  of  common  pleas  in  and  for  the  said  county,  ac- 
cording to  the  form  of  the  statute  in  that  case  made  and  pro- 
vided, by  the  oath  of  William  Steele  (name  the  whole  grand 
jury),  good  and  lawful  men  of  the  said  county  sworn  and  charged 
*to  inquire  for  the  state,  in  and  for  the  body  of  the  said  county, 
It  is  presented  in  manner  and  form  following,  that  is  to  say,  New 
Jersey,  Essex  county,  to  wit,  the  jurors  &c.,  to  the  end  of  the 
indictment.  Whereupon  the  said  David  Gustin,  being  publicly 

*747 


2  SOUTH.]  FEBRUARY  TERM,  1820.  875 


State  v.  Gustin. 


called,  cometh  not,  and,  therefore,  it  is  commanded  to  the  sheriff 
of  the  said  county  that  he  take  the  said  David  Gustin  and  have 
him  here  to  answer  &c.,  if  &c.,  and  if  not,  then  &c. 

Afterwards,  that  is  to  say,  at  a  court  of  oyer  and  terminer  and 
general  gaol  delivery  holden  at  Newark  aforesaid,  in  the  county 
aforesaid,  on  the  second  Tuesday  in  April,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fourteen,  before  the  Hon- 
orable ,  Esq.,  justice  of  the  said  supreme  court,  and 
,  Esqs.,  and  others,  their  fellows,  judges  of  the  said 
inferior  court  of  common  pleas  in  and  for  the  said  county, 
coineth  the  said  David  Gustin,  in  his  proper  person,  according 
to  the  condition  of  the  recognizance  by  himself,  and  his  pledge 
in  that  behalf  heretofore  made,  and  now  here  touching  the 
premises  in  the  said  indictment  above  specified  and  charged  upon 
him,  being  asked  in  what  manner  he  will  acquit  himself  thereof, 
he  says  he  is  not  guilty  thereof,  and  of  this  he  puts  himself  upon 
the  country.  And  William  Chetwood,  Esq.,  who  prosecutes  for 
the  state  in  this  behalf,  does  likewise  the  same. 

Form  of  Record  in  the  Supreme  Court. 

Pleas  before  the  justices  of  the  supreme  court  of  judicature  of  the 
state  of  New  Jersey,  at  Trenton,  of  the  term  of  May,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  sixteen. 

Essex,  to  wit :  The  state  of  New  Jersey  sent  to  the  commis- 
sioners of  the  courts  of  oyer  and  terminer  and  general  gaol  deliv- 
ery, holden  at  Newark,  in  and  for  the  said  county  of  Essex,  their 
writ  of  certiorari  in  these  words,  to  wit :  "  The  state  of  New 
Jersey,"  (to  the  end  of  the  writ,  closing  with  the  word  sixteen)  ; 
which  said  writ  of  certiorari  unto  the  justices  aforesaid,  at  Tren- 
ton aforesaid,  on  the  said  second  Tuesday  in  May,  in  this  same 
term,  the  said  commissioners  of  the  said  courts  of  oyer  and 
terminer  and  general  gaol  delivery,  in  and  for  the  said  county  of 
Essex,  that  is  to  say,  Samuel  L.  Southard,  David  D.  Crane  and 
James  Hedden,  esquires,  according  to  the  command  of  the  said 
writ,  under  their  seals  do  return  in  the  words  following,  to  wit : 
"  The  indictment  of  David  Gustin,  whereof  men*tion  is  within 

*748 


876  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


State  v.  Gustin. 


made,  and  all  things  touching  and  concerning  the  same,  to  the 
justices  of  our  supreme  court,  at  Trenton,  within  specified,  at 
the  day  and  place  within  mentioned,  we,  the  judges  of  the  court 
of  oyer  and  terminer  and  general  gaol  delivery  within  men- 
tioned, under  our  seals,  and  hereunto  annexed,  as  within  we  are 
•commanded,  do  send."  Which  said  indictment,  with  all  things 
touching  and  concerning  the  same,  had  and  done  in  the  said 
•court  of  oyer  and  terminer  and  general  gaol  delivery  in  and  for 
the  said  county  of  Essex,  in  the  record  thereof  certified  and  sent, 
annexed  to  the  said  writ,  is  contained  in  these  words,  to  wit : 

"  Essex,  to  wit :  Be  it  remembered  "  &c.  (as  per  record,  to  the 
«nd  thereof). 

And  the  said  David  Gustin,  before  the  justices  aforesaid,  at 
Trenton  aforesaid,  on  the  return  of  the  said  writ,  coineth  in  his 
own  proper  person,  according  to  the  condition  of  the  recogni- 
sance, by  himself  and  his  pledges  in  that  behalf  heretofore  made, 
and  prayeth  liberty  to  withdraw  the  plea  aforesaid,  by  him  in 
form  aforesaid  pleaded,  because  he  says  the  same  was  unadvisedly 
pleaded;  and  it  is  granted  to  him  upon  condition  &c.  And 
thereupon  the  said  David  allegeth  that  the  said  indictment  doth 
not  contain  matter  to  which  he  ought  to  be  put  to  the  expense  and 
delay  of  making  answer,  and  therefore  prayeth  that  the  said  in- 
dictment may  be  quashed,  vacated,  and  holden  for  none,  and 
thereof  submitteth  himself  to  the  advice  of  the  justices  aforesaid. 
And  because  the  justices  aforesaid  will  further  advise  themselves 
of  and  upon  the  premises,  day  is  given  to  the  said  David  Gustin 
here  until  the  first  Tuesday  in  September  next  &c. 

And  now  at  this  day,  that  is  to  say,  on  the  last  Tuesday  in 
February,  in  the  term  of  February,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  twenty,  until  which  day  the  said 
cause  was  continued  from  term  to  term  before  the  justices  afore- 
said, for  further  advisement,  cometh  the  said  David  Gustin,  accord- 
ing to  the  condition  of  the  recognizance  by  himself  and  his  pledges 
in  that  behalf  heretofore  made  ;  and  the  said  indictment  by  the 
said  justices  now  here  being  carefully  inspected,  and  due  deliber- 
ation being  thereupon  had,  it  is  considered  that  the  said  indict- 
ment, for  the  cause  aforesaid,  be  quashed,  vacated,  and  for  none 
holden,  and  that  the  said  David  go  thereof  without  day  &c. 


2  SOUTH.]  FEBRUARY  TERM,  1820.  877 


State  v.  Gustin. 


*THE  STATE  v.  DAVID  GUSTIX.  (a) 

Purport. 

Another  indictment  for  forgery  against  the  same  defendant 
was  found  at  the  same  time,  and  the  same  proceedings  until  judg- 
ment were  had  as  in  the  preceding  case. 

The  indictment  charged  "  that  David  Gustin,  late  &c.,  on  &c., 
and  after  the  dissolution  of  the  copartnership  of  the  said  David 
Gustin  and  John  Ogden,  who  had  shortly  before  carried  on  trade 
and  merchandise  under  the  name  and  firm  of  Ogden  &  Gustin, 
at  &c.,  did  falsely  make,  forge  and  counterfeit,  and  did  cause  and 
procure  to  be  falsely  made,  forged  and  counterfeited,  a  certain 
promissory  note  for  the  payment  of  money,  signed  by  the  said 
David  Gustin  with  the  partnership  name  of  Ogden  &  Gustin, 
and  purporting  to  have  been  signed  by  the  said  David  Gustin 
with  the  partnership  name  and  firm  of  Ogden  &  Gustin  before 
the  said  partnership  was  dissolved,  the  tenor  of  which  said 
promissory  note  is  as  follows :  '  $5,000.  Ninety  days  after  date 
we  promise  to  pay  William  Shute,  or  order,  five  thousand  dol- 
lars, at  the  State  Bank  at  Elizabeth,  without  defalcation  or  dis- 
count, for  merchandise  rec'd.  E.  Town,  30th  Deer.,  1812. 
Ogden  &  Gustin ;'  with  intent  to  defraud  the  said  John  Ogden, 
and  to  render  him  liable  to  the  payment  of  the  said  sum  of 
money  in  the  said  note  mentioned  and  made  payable,  contrary  to 
the  form  of  the  statute  "  &c. 

Hatsey  moved  to  quash.  1.  For  uncertainty  and  inconsistency. 
2.  Because  the  purport  was  incorrectly  stated ;  it  being  stated  to 
be  signed  by  defendant,  with  the  partnership  name  of  Ogden  & 
Gustin,  whereas  it  did  not  purport  to  be  signed  by  D.  Gustin. 
2  East  982.  3.  Because  partner,  before  or  after  dissolution  of 
partnership,  may  sign  partnership  name  for  a  separate  business, 
and  not  be  liable  to  the  pains  of  forgery. 

(a)  State  v.  Gustin,  ante  744. 

*749 


878  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Associates  of  the  Jersey  Co.  v.  Halsey. 

Chetwood  answered,  and  referred  to  2  Hawk.  344>  1  Mod. 
78;  1  Str.  234,  $41,  ®66  ;  1  Salk.  384;  1  Leach  239,  410;  2 
Str.  486 ;  8  Leach  660. 

THE  COURT  (Southard,  J.,  dissenting)  overruled  the  motion, 
and  put  the  defendant  to  plead  &c. 


*THE  ASSOCIATES  OF  THE  JERSEY  COMPANY  v.  WILLIAM 
HALSEY,  ESQ. 

1.  Deed  for  several  lots  of  ground  and  rent  reserved.     Count  for  rent  due  on 
particular  lots,  and  general  assignment  of  breach,  good,  (a) 

2.  Defect  in  pleading,  which  verdict  would  cure,  not  a  ground  of  non- 
suit. (6) 

In  error. 

This  case  was  presented  to  the  court  at  November  term,  1819. 
The  action  was  covenant,  founded  on  two  deeds  for  certain  lots 
of  ground  in  the  city  of  Jersey,  in  which  deeds  there  is  a  reser- 
vation of  rent  to  be  paid  by  the  defendant  to  the  said  associates 
and  their  successors,  and  a  covenant,  on  the  part  of  the  defend- 
ant, to  pay  the  said  rent  at  the  days  and  times  therein  specified. 

The  bill  contains  two  counts,  one  on  each  deed,  setting  forth 
that  rent  was  due  on  certain  lots,  and  specified  in  the  said  deeds 
respectively,  with  a  general  assignment  of  breach  in  the  non-pay- 
ment of  the  said  rents.  To  this  declaration  the  defendant  pleaded 
— 1.  Non  cstfactumand  issue  joined.  2.  That  after  the  making 
of  the  deeds  in  the  declaration  mentioned,  the  defendant  did,  at 
the  days  and  times,  pay  the  rent  specified  in  the  said  deeds  ac- 

(a)  See  Condit  v.  Baldwin,  b  Harr.  144;  Hanness  v.  Smith,  2  Zab.  SS2  ;  Ros- 
cnkrantz  v.  Durling,  5  Dutch  191 ;  Van  Voorst  v.  Morris  Canal,  Spen.  167,  200. 

(6)  See  Baldwin  v.  O Brian,  Coxe  418;  Farwdl  v.  Smith,  1  Harr.  133;  Brown- 
ing v.  SkiUman,  4  Zab.  352  ;  Harrison  v.  Newkirk,  Spen.  176 ;  Rose  v.  Parker, 
post  780.  Breaches  may  be  assigned  after  verdict,  West  v.  Caldwell,  3  Zab.  736. 

*750 


2  SOUTH.]  FEBRUARY  TERM,  1820.  879 

Associates  of  the  Jersey  Co.  v.  Halsej. 

cording  to  the  form  and  effect  of  the  said  deeds,  concluding  with 
a  verification.  3.  That  he  hath  not  broken  the  said  several 
covenants  in  the  first  and  second  counts  in  the  said  declaration 
mentioned,  and  issue  joined.  4.  That  after  the  execution  of  said 
indenture,  and  after  the  breaches  alleged,  and  before  the  filing  of 
the  bill,  the  defendant  paid  the  sum  of  $288,  in  full  satisfaction 
of  all  the  damages  sustained ;  which  sum  was  accepted  by  the 
company  in  full  satisfaction,  concluding  with  a  verification.  To 
which  pleas  there  was  a  special  notice  subjoined. 

The  plaintiffs  replied  to  the  second  plea  that  the  said  William 
Halsey  did  not,  on  the  several  days  and  times  therein  alleged, 
pay  the  rent  as  therein  specified,  and  issue  joined.  To  the 
fourth  plea  ;  that  the  defendant  did  not  pay  the  said  sum  in  full 
satisfaction  of  the  damages,  and  that  the  plaintiffs  did  not  accept 
the  same  in  full  satisfaction,  as  therein  alleged,  and  issue  joined. 

On  the  trial  the  plaintiffs  produced  the  deeds  in  evidence, 
which  were  read,  and  offered  to  prove  the  rent  in  arrear,  to  which 
the  counsel  for  the  defendant  objected  on  the  ground  that  the 
breach  in  the  bill  was  improperly  assigned,  which  objection  the 
court  below  sustained,  aud  nonsuited  the  plaintiffs.  To  which 
opinion  of  the  court  the  plaintiffs  tendered  a  bill  of  exceptions, 
which  was  allowed  and  sealed. 

*The  error  assigned  and  relied  on  in  argument  was  that  the 
court  below  ought  not  to  have  nonsuited  the  plaintiff. 

R.  Stockton,  for  plaintiff  in  error.  The  only  issue  on  the 
plaintiff  was  non  est  factum,  and,  therefore,  after  he  gave  the 
deed  in  evidence  he  rested.  1  Chit.  482 ;  14.  Johns.  93.  The 
plea  non  infregit  contained  two  negatives,  was  senseless,  not  issu- 
able  and  not  to  be  considered.  Com.  Dig.  "  Pleading  "  622  ;  2 
EL  1312.  The  only  matter,  therefore,  to  be  tried  was,  on  one 
side,  the  existence  of  the  deed,  and  on  the  other  the  payment  of 
all  or  a  sum  certain  accepted.  Yet,  where  there  was  plea  of  pay- 
ment, the  court  strangely  refused  to  call  on  defendant  to  support 
it.  It  is,  however,  said  that  the  nonsuit  was  granted  because  the 
breach  was  bad  in  that  it  was  for  entirety  and  not  for  particular 
lots  on  which  the  rent  was  in  arrear.  But  no  case  can  be  found 

*751 


880  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Associates  of  the  Jersey  Co.  v.  Halsey. 

where,  on  affirmative  pleas  by  the  defendant,  the  plaintiff  has 
been  nonsuited  for  defect  of  declaration.  There  should  have 
been  demurrer  or  motion  in  arrest  of  judgment.  3  Com.  Dig. 
"Pleading"  621,  622.  Besides,  it  is  conclusively  answered — 1. 
The  declaration  is  good,  the  breaches  are  well  assigned,  they  are 
governed  by  the  nature  of  the  contract,  and  if  they  are  in  the 
sense  and  not  in  the  words  of  the  covenant,  and  show  a  failure 
in  all  or  part,  are  good.  Com.  Dig.  "Pleading  "  351  c.  4-6'  The 
question  is,  Has  defendant  failed  in  any  respect  to  perform  his 
contract  ?  The  objection  to  this  is  said  to  be  that  the  rent  is  en- 
tire and  cannot  be  demanded  upon  the  parts.  Not  so.  The 
rents  are  on  distinct  lots  and  the  entire  rent  cannot  remain  as  a 
claim  upon  each  and  every  of  them.  If  purchaser  of  some  have 
paid  he  cannot  be  sued  for  the  whole.  The  rent  is  not  indivisible. 
Annuity  was  for  the  whole,  but  it  is  now  disused  and  covenant 
has  succeeded  to  it,  and  is  for  the  actual  damages  sustained.  Bac. 
"  Rent "  M  368 ;  5  Boo.  ^7.  There  is  a  dictum  in  Espinasse 
where  the  part  or  fraction  was  not  covered  by  the  covenant ;  the 
words  were  not  at  the  rate,  but  here  every  dollar  is  covered  by 
the  covenant,  and  it  is  broken  if  one  remain  unpaid. 

2.  If  the  words  in  the  first  count — "  for  lots  73  &c." — are 
struck  out  the  declaration  is  good.     So,  if  plaintiff  shows  less  to 
be  due  it  is  not  bad  on  general  demurrer.     5  Bac.  "Pleading  " 
414;  2  Com.  Dig.  "Pleading"  620  tit.  2;  2  Lev.  57.      But— 

3.  The  defect,  if  any,  is  cured  by  pleading  over,  and  would 
*have  been  cured  by  verdict.     Cro.  Car.  76 ;  Ld.  Ray.  596  ; 
1  Salk.  141;  3  Burr.  1725;  3  Wil.  275. 

Attorney-General,  in  answer.  The  nonsuit  is  sustainable — 1. 
Because  the  breaches  assigned  are  bad  and  cannot  be  cured. 
Every  breach  must  be  according  to  the  covenant.  Com.  Dig. 
"Pleading  "  647.  The  covenant  conveys  seven  lots,  and  defendant 
is  to  pay  $72,  and  not  any  particular  sum  on  any  particular  lot. 
There  was  no  apportionment,  and  this  is  an  action  .against  the 
original  lessee  on  his  covenant.  Lit.  §  217.  It  is  a  rent-charge, 
and  right  of  entry  "and  distress  are  reserved.  Lit.  §  222.  It 
cannot,  therefore,  be  apportioned.  Esp.  162.  There  can  be  no 

*752 


2  SOUTH.]          FEBRUARY  TERM,  1820.  >  s  l 

Associates  of  the  Jersey  Co.  v.  Halsey. 

apportionment  where  party  rests  on  the  deed.  Nor  is  it  surplus- 
age. The  plaintiff  must  prove  his  claim  according  to  the  cove- 
nant which  he  has  set  out.  Doug.  667  ;  Com.  Dig.  "  Pleading  " 
38.  2.  The  nonsuit  was  right,  because  there  was  no  evidence  of 
the  cause  of  action.  The  plaintiff  claimed  a  particular  sum — 
$248.  He  ought  to  have  given  some  evidence  to  prove  it  and 
guide  the  jury  in  their  estimate,  so  that  the  apportionment,  if  it 
was  to  be  made  at  all,  might  be  correct. 

KIRKPATRICK,  C.  J. 

This  is  a  writ  of  error  to  the  common  pleas  of  Bergen  county 
in  an  action  of  covenant. 

The  plaintiffs,  in  their  declaration,  set  forth  that  by  certain 
deeds  of  indenture  they  sold  and  conveyed  to  the  defendant,  in 
fee,  fourteen  lots  of  land  in  the  town  of  Jersey,  that  is  to  say, 
eight  by  one  deed  and  six  by  another,  described  therein  by  their 
numbers  and  the  streets  upon  which  they  are,  he  yielding  and 
paying  for  the  said  eight  lots  the  sum  of  $72,  and  for  the  said 
six  lots  the  like  sum  of  $72,  on  the  1st  day  of  May  yearly 
and  every  year  forever;  and  that  the  said  defendant,  in  and 
by  the  said  deeds  of  indenture,  entered  into  express  covenant  with 
them  to  pay  the  said  rents  accordingly. 

Then  they  assign  for  breach  of  the  covenant  in  the  deed  of 
indenture  for  the  eight  lots  contained,  that  on  May  1st,  1816,  a 
large  sum  of  money,  to  wit,  the  sum  of  $192,  of  rent  due  for 
lots  74  and  76  in  Essex  street,  and  73  and  75  in  Morris  street, 
mentioned  in  the  said  indenture,  for  eight  years  then  elapsed, 
became  and  was,  and  still  is  in  arrear,  due  and  unpaid ;  and  for 
breach  of  the  covenant  in  the  deed  of  indenture  for  the  said  six 
lots  contained,  that  on  the  same  1st  of  May,  1816,  another  large 
*sum  of  money,  to  wit,  the  sum  of  $96,  of  rent  due  for  lot  3  in 
Essex  street,  mentioned  in  the  said  indenture,  for  eight  years 
then  elapsed,  became  due,  and  was  and  still  is  du-:,  in  arrear  and 
unpaid— contrary  to  the  tenor  and  effect,  true  intent  and  mean- 
ing of  the  said  covenant ;  and  that,  therefore,  the  said  defendant 
hath  not  kept  his  said  covenants  with  the  said  plaintiffs,  but  hath 
broken  the  same. 

*753  56 


882  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Associates  of  the  Jersey  Co.  v.  Halsey. 

The  defendant  made  no  objection  to  the  declaration,  but 
pleaded  three  pleas,  to  which  there  were  replications  in  due 
form ;  but  from  the  course  the  cause  took,  it  is  unnecessary  to 
speak  of  them. 

The  plaintiffs  on  the  trial  gave  in  evidence  the  counterparts 
of  these  deeds  of  indenture,  duly  executed  by  the  defendant,  con- 
taining the  covenants  above  set  forth,  and  then  rested  their 
cause.  Upon  this  there  was  a  motion  for  a  nonsuit,  and  the 
court  ordered  the  plaintiffs  to  be  called.  To  this  opinion  of  the 
court  there  was  a  bill  of  exception  taken,  which  is  the  founda- 
tion of  this  writ  of  error. 

From  the  argument  at  bar  we  are  given  to  understand  that 
this  nonsuit  was  ordered  not  from  any  want  of  due  proof  of  the 
•execution  of  these  indentures,  for  they  were  admitted  by  the 
•defendant  himself,  nor  for  any  imperfection  or  deficiency  in  the 
•covenants,  for  they  were  manifestly  complete,  but  for  the  fault 
;and  unskil fulness  of  the  declaration  in  setting  forth  the  breaches 
•of  the  said  covenants,  and  because  it  was  so  badly  done  that  the 
•defendant  could  not  be  put  to  answer. 

It  may  readily  be  admitted  that  these  breaches  are  not  assigned 
with  all  the  skill  and  precision  of  an  able  pleader. 

The  covenant  in  the  first  deed  is  that  the  defendant  shall  pay 
for  the  eight  lots  therein  contained  the  sum  of  $72  yearly  and 
<every  year  forever.  The  breach  assigned  is  that  he  has  not  paid, 
but  that  there  is  a  large  sum,  to  wit,  the  sum  of  $192,  in  arrear, 
being  the  rent  due  on  four  of  these  lots  for  eight  years ;  and  the 
amount  and  assignment  in  the  last  deed  are  exactly  similar, 
going  to  one  lot  only  instead  of  four. 

Now,  one  would  think  it  were  hardly  possible  to  express  this 
breach  in  more  clear  and  unequivocal  terms  than  to  say  the  de- 
fendant covenanted  to  pay  $72  a  year,  and  yet  that  he  has  not 
paid  it,  but  has  left  $192  unpaid.  That  the  assignment  goes 
farther  and  states  the  particular  lots  upon  which  the  rent  was 
not  paid,  and  for  how  long  time  it  was  not  paid,  though  unnec- 
essary *and  introductory  of  circumstances  altogether  impertinent, 
yet  certainly  cannot  vitiate  that  which  is  good. 

Some  short  sayings  have  been  picked  up  from  the  abridg- 

*754 


2  SOUTH.]          FEBRUARY  TERM,  1S20.  883 

Associates  of  the  Jersey  Co.  v.  Halsey. 

ments  and  cited  upon  this  subject  which  seem  not  to  have  been 
•well  considered.  For  instance,  in  Com.  Dig.  "Pleading"  C  4?,ti 
is  said,  If  a  breach  assigned  be  not  in  the  words  of  the  covenant,  but 
-shorter  or  larger  than  the  covenant,  it  is  bad.  But  when  we  come 
to  look  into  the  cases  upon  which  this  position  is  founded,  and 
thereby  discover  the  true  meaning  of  the  writer,  we  see  that  it  has 
no  application  at  all  to  the  case  before  us.  To  take  one  or  two 
of  them  only.  A  covenant  to  enjoy  without  LAWFUL  disturb- 
ance, and  breach  assigned  that  he  was  disturbed,  is  bad;  the 
breach  is  shorter  than  the  covenant ;  it  should  have  been  that  he 
was  lawfully  disturbed.  So,  covenant  to  pay  so  much  per  ton  for 
.the  transportation  of  merchandise,  and  breach  assigned  that  he 
.had  not  paid  for  so  many  tons  and  one  hogshead,  is  bad  ;  the 
breach  is  larger  than  the  covenant ;  he  was  to  pay  by  the  ton,  and 
not  pro  rota  for  any  smaller  quantity,  as  a  hogshead.  Again. 
In  Espinasse  tit.  "  Covenant,"  it  is  said,  In  covenant  to  pay  a  sum 
certain  there  can  be  no  apportionment  of  demand,  for  the  breach 
must  follow  the  covenant,  which  is  entire.  This  seems  to  be  the 
principal  authority  relied  upon  in  this  case.  But  what  does  the 
author  mean  ?  Let  us  refer  to  his  cases.  The  first  is  the  one 
above  cited,  about  paying  by  the  ton  ;  and  then  there  could  be 
no  demand  of  payment  for  anything  less  than  a  ton,  as  a  hogs- 
head ;  there  could  be  no  apportionment ;  the  covenant  was  not  to 
pay  pro  rata  for  any  less  quantity.  The  next,  and  only  other 
case  there  cited,  is  covenant  to  pay  two  shillings  per  quire  for 
writing,  and  the  breach  assigned  is  that  he  did  not  pay  for  four 
<juires  and  three  sheets,  and  adjudged  bad  because  the  breach 
must  follow  the  covenant,  which  was  to  pay  by  the  quire,  and 
not  by  the  sheet  at  all. 

But  is  it  possible  to  deduce  from  these  cases,  by  any  process 
of  analogical  reasoning,  that  if  a  man  covenants  to  pay  $72  per 
annum  rent,  and  pays  $20  of  it  only,  that  you  shall  not  recover 
the  residue  because  it  is  less  than  the  covenant ;  or  because,  the 
$72  being  a  sum  certain,  there  can  be  no  apportionment,  and  you 
must  recover  the  whole  or  none? 

Again.  The  defendant  has  cited  Co.  Lit.  143  to  show  that 
this  is  a  rent-charge,  being  a  reservation  of  rent  upon  a  fee,  with 


884  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Associates  of  the  Jersey  Co.  v.  Halsej. 

*po\ver  to  distrain.  It  is  so.  He  then  reads  the  same  book,. 
llfl  b,  to  show  that  a  rent-charge  is  an  entire  thing,  issuing  out 
of  every  part  of  the  land,  and  cannot  be  apportioned.  It  is  so- 
in  a  certain  sense,  but  how  does  that  help  him  ?  Does  it  prove 
that  if  a  part  only  be  paid  you  cannot  distrain  for,  or  recover,, 
the  residue  ?  Let  us  see  what  the  author  is  speaking  of — what 
he  means  by  a  rent-charge  being  an  entire  thing,  issuing  out  of 
every  part  of  the  land,  which  cannot  be  apportioned.  He  says,. 
If  a  man  hath  a  rent-charge  out  of  certain  land,  and  he  purchase 
any  part  of  this  land  to  himself  and  his  heirs,  all  the  rent-charge 
is  extinct,  because  it  cannot  by  such  manner  be  apportioned.  Now,. 
take  it  that  this  extinguishment  would  apply  as  well  to  the  cove- 
nant as  the  power  of  distress,  and  what  does  it  amount  to  ?  It 
amounts  to  this,  and  only  this  :  that  if  he  who  has  the  rent- 
charge  purchases  part  of  the  land  out  of  which  it  issues  he  shall 
not  apportion  for  himself  and  recover  accordingly ;  he  shall  not 
say  the  part  purchased  shall  go  for  so  much,  and  the  part  in  the 
hands  of  the  feoffee  shall  render  the  residue,  and  then  distrain 
for  such  residue ;  but  the  whole  shall  rather  become  extinct, 
because,  upon  the  purchase,  he  did  not  take  care  to  make  the 
apportionment  and  hold  the  feoffee  bound. 

But  how  does  all  this  apply  to  this  case  ?  Have  the  plaintiffs 
purchased  any  part  of  these  lots  ?  Is  there  any  apportionment 
to  be  made  between  them  and  the  defendant  ?  What  is  there,, 
then,  in  this  doctrine,  that  at  all  exonerates  him  from  the  pay- 
ment of  this  money  ? 

We  are,  then,  thrown  back  again  upon  the  form  of  the  assign- 
ment of  these  breaches.  And  upon  this  it  may  be  said  that,  in 
order  to  make  an  assignment  bad,  upon  either  of  the  principles 
taken  by  the  defendant,  it  must  be  such  an  assignment  as  may  be 
perfectly  true,  and  the  covenant  not  broken,  as  the  fact  is  in  the 
cases  cited  from  Com.  Dig.  and  Espinasse.  Now,  if  what  the 
plaintiff  has  said,  here  can  possibly  be  true,  and  yet  the  covenants 
not  broken,  that  is  to  say,  if  the  sums  of  $192  and  $96  can  pos- 
sibly be  due  and  unpaid  of  these  rents,  and  yet  the  defendant  has 
performed  his  covenants  and  paid  the  money,  then  the  assign- 
ment is  bad,  but  otherwise  not. 

*755 


2  SOUTH.]  FEBRUARY  TERM,  1820.  885 

Sterling  v.  Sinnickson. 

But  even  if  there  were  more  in  the  objection  to  the  declaration 
in  this  respect  than  there  really  is,  yet  it  would  be  no  ground  for 
s,  nonsuit.  No  irregularity,  imperfection,  or  deficiency,  in  the 
*pleadings,  which  a  verdict  would  cure,  can  be  a  ground  for  a 
nonsuit.  Now,  by  the  express  words  of  our  act  respecting  amend- 
ments and  jeofails,  and  still  more  by  the  universal  practice  founded 
upon  the  liberality  of  modern  times,  a  verdict  cures  all  misplead- 
ings, insufficient  pleadings,  and  misjoining  of  issues,  provided  suf- 
ficient appear  to  enable  the  court  to  give  judgment  according  to  the 
very  right  of  the  case.  In  short,  to  nonsuit  upon  the  pleadings,  it 
must  be  apparent,  upon  the  face  of  them,  that  the  plaintiff  has 
no  right  of  action,  and  that  a  verdict  in  his  favor  would  be  a 
perfect  nullity. 

In  the  opinion  of  the  whole  court  let  the  judgment  of  nonsuit 
be  reversed,  and  a  venire  facias  de  novo  issue  from  this  court,  if 
the  plaintiffs  will. 


BENJAMIN  STERLING  v.  SENECA  SINNICKSOX. 

Sealed  bill  to  pay  $1,000  provided  obligee  is  not  lawfully  married  in  six 
months,  is  void,  (a) 

In  debt. 

Plaintiff  declared  against  the  defendant  in  debt  on  a  sealed 
bill  in  the  usual  form  of  declarations.  Defendant  prayed  oyer 
of  the  sealed  bill,  which  was  given  in  these  words : 

"  I,  Seneca  Sinnickson,  am  hereby  bound  to  Benjamin  Sterling 
for  the  sum  of  one  thousand  dollars,  provided  he  is  not  lawfully 
married  in  the  course  of  six  months  from  the  date  hereof.  Wit- 
ness my  hand  and  seal.  Burlington,  May  16th,  1816. 

"  Witness — Jas.  S.  Budd.     SENECA  SINNICKSON."  [SEAL.] 

(a)  Cited  in  Sharp  v.  Teese,  4  Hal.  S55 ;  Ou-'iek  v.  Bailey,  5  Hal.  92;  and 
*ee  Qraydon  v.  Oraydon,  8  C.  E.  Or.  SSO  /  form  of  pleading  approved  in 
Jieardsley  v.  Southmayd,  2  Or.  541. 

*756 


886  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Sterling  v.  Sinnickson. 

Defendant,  after  oyer,  demurred  generally  to  the  plaintiff's 
declaration,  and  plaintiff  joined  in  demurrer* 


This  contract  militates  against  every  legal  principle 
on  which  contracts  can  be  supported.  1.  It  is  against  national 
policy.  It  may  be  assimilated  to  contracts  in  restraint  of  trade. 
The  principle  is  the  same.  Pow.  on  Con.  167,  168,  169.  2. 
It  is  against  the  general  welfare  of  society.  Pow.  174,  183.  3. 
The  object  of  the  contract  is  useless.  Pow.  231.  Such  contracts 
cannot  be  enforced  either  by  the  common  law  or  Roman  law. 
Pow.  232,  ait.  Puff.  lib.  5  c.  2  §  3.  4.  All  engagements  in  re- 
straint of  marriage  are  void.  4.  Burr.  2225  ;  2  Fern.  215  ;  *£ 
Atk.  535  ;  Shep.  Touch.  129.  5.  It  is  a  contract  without  con- 
sideration. 6.  The  declaration  is  radically  defective.  The  unde 
actio  accrevit  is  omitted.  Where  the  debt  arises  on  the  obliga- 
tion solely  you  need  not  aver  unde  &c.,  but  where  it  arises  by 
reason  of  something  else,  also  alleged,  you  must.  1  Chit.  345, 
346;  Gilb.  Debt  414. 

Here  the  action  arises  aliunde,  as  from  not  marrying. 

Coxe,  in  answer.  The  general  principle  is  not  denied  that 
contracts  restraining  marriage  are  contrary  to  the  policy  of  the 
law  and  therefore  void,  but  it  is  contended  —  1.  That  to  render 
them  invalid  the  restraint  must  be  general.  2.  That  this  is  not 
a  contract  restraining  marriage  within  the  meaning  of  the  gen- 
eral rule. 

1.  All  conditions  against  the  liberty  of  marriage  are  not  un- 
lawful, but  if  the  conditions  are  only  such  whereby  marriage  is- 
not  absolutely  prohibited  but  only  in  part  restrained,  as  in  re- 
spect of  time,  place  or  person,  then  such  conditions  are  not  utterly 
to  be  rejected.  15  Vin.  272  pi  31  ;  Godol  Orp.  Leg.  45  / 
Swinb.  281,  282,  283  ;  4  Bac.  Abr.  411  "Legacies"  F;  2  Br. 
Ch.  Ca*.  488  ;  15  Vin.  269  pi.  16  ;  1  Fonbl.  251  note;  Boxv. 
Day,  1  Wtts.  89;  5  Vin.  Abr.  95  pi  14;  2  Show.  352;  8.  C., 
2  Fern.  572  ;  Woodhouse  v.  Shipley,  2  Atk.  535.  This  instru- 
ment, then,  if  restraining  marriage,  yet  restraining  it  but  for  a 
very  short  period,  is  valid  within  all  the  decisions. 

*757 


2  SOUTH.]  FEBRUARY  TERM,  1820.  887 

Sterling  r.  Sinnickson. 

2.  But  the  instrument  is  not  in  any  manner  in  restraint  of 
marriage  nor  open  to  this  objection.  1  Paw.  on  Con.  165.  An 
obligation  is  void  as  against  law — 1.  When  the  party  agrees  to 
do  something  malum  in  se.  2.  When  he  agrees  to  do  something 
malum  prohibitum.  3.  To  omit  doing  something  that  is  a  duty. 
In  this  instance  there  is  no  contract  on  the  part  of  the  plaintiif 
not  to  marry,  no  obligation  or  promise  on  his  part.  To  make 
the  instrument  void  on  this  ground  one  of  the  parties  must 
oblige  himself  not  to  marry.  Here,  had  plaintiff  married,  he 
would  neither  have  subjected  himself  to  an  action  nor  incurred  a 
forfeiture.  A  contract  in  restraint  of  marriage  is  a  contract  by 
which  one  obliges  himself  not  to  marry.  Conditions  similar  to 
that  contained  in  this  instrument  are  among  the  most  usual  in 
the  books.  2  Bl.  Com.  124;  1  Cm.  Dig.  60,  61;  Barton  v. 
Barton,  2  Vern.  308  ;  Chauncey  v.  Tahourden,  2  Atk.  392  ;  Cro. 
Eliz.414;  5  Vin.  103 ;  5  Vln.  97  pi.  6  ;  5  Vin.  103  pi  24. 

*The  cases  in  which  devises  and  bequests,  on  such  conditions, 
have  been  held  good,  are  innumerable  (see  Viner,  Bacon,  Or- 
phan's Legacy,  Swinburne,  &c.,  where  before  cited),  and  their 
validity  has  never  been  questioned,  where  the  intention  of  tes- 
tator is  manifest.  The  law  is  the  same  in  cases  of  feoffments, 
grants,  leases  and  bonds.  1 .  There  is  no  case  or  dictum  in  any 
book  that  there  is  any  distinction.  2  Most  of  the  foregoing 
cases  cited  are  not  cases  of  wills. 

Nor  can  it  be  contended  that  there  is  any  distinction  in  the 
law  between  widows  and  other  persons.  1.  Whatever  might 
have  been  the  rule  of  the  civil  or  canon  law,  no  such  distinction 
exists  in  the  common  law.  4  &<*£.  1^11,  "  Legacies  "  F,  margin  ; 
Baker  v.  White,  2  Vern.  217. 

So  that  it  follows,  irresistibly,  from  all  the  cases — 1.  That 
where  a  person  obligates  himself,  generally,  not  to  marry,  the 
eontract  is  void.  2.  Where  the  restraint  he  imposes  on  himself 
is  limited  as  to  time,  place  or  person,  the  objection  does  not  exist. 
3.  In  every  instance,  if  one  gives  a  benefit  to  another,  he  may 
annex  the  condition  that  the  donee  shall  not  marry.  It  is  the 
right  and  liberty  of  the  subject  who  makes  a  voluntary  disposi- 
tion of  his  property,  to  dispose  of  it  in  what  manner  and  upon 

*758 


883  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Sterling  v.  Sinnickson. 

what  terms  and  conditions  he  pleases.  Comyn's  Rep.  744 ',  5  Vin. 
88.  But,  admitting  this  condition  to  be  invalid,  it  follows  that 
the  money  is  payable  absolutely.  Orph.  Leg.  381  c.  17  §  5 ; 
Id.  §§  6,7;  5  Tin.  95  pi.  14;  15  Vin.  272  pi.  30;  Id.  pi  31; 
Swinb.  282. 

If,  under  any  circumstances,  this  contract  is  valid,  it  is  good 
on  general  demurrer.  The  special  circumstances  rendering  it 
invalid  should  be  shown  by  pleading. 

Ewing,  in  reply.  The  cases  cited  by  Mr.  Coxe  are  either 
cases  of  devises  or  legacies.  It  is  answered — 1.  A  man  has  a 
right  to  annex  a  condition  to  his  gift,  and  there  is  often  a  pro- 
priety in  so  doing.  2.  If  legatee  or  devisee  asks  the  property, 
he  ought  to  comply  with  the  condition  or  terms  of  the  gift.  The 
case  in  Wilson  is  an  engagement  to  marry,  and  not  an  engage- 
ment not  to  marry. 

KlRKPATRICK,  C.  J. 

This  is  an  action  of  debt  upon  a  single  bill,  which  is  in  these 
words,  viz. : 

I,  Seneca  Sinnickson,  am  hereby  bound  to  Benjamin  Sterling 
*/or  the  sum  of  one  thousand  dollars,  provided  he  is  not  lawfully 
married  in  the  course  of  six  months  from  the  date  hereof.  Witness 
my  hand  and  seal.  Burlington,  May  16th,  1816.  (Signed) 
Seneca  Sinnickson. 

The  declaration  in  this  case,  in  the  first  place,  recites  that  the 
defendant  had  been  summoned  to  answer  the  plaintiff  in  a  plea 
that  he  should  render  unto  him  $2,000 ;  then  sets  forth  the 
making  of  the  bill,  with  its  date,  and  avers  that  the  plaintiff  was 
not  married  within  six  months  from  the  date  thereof,  but  does 
not  conclude  with  the  unde  actio  accredit,  but  merely  with  an 
averment  that  the  defendant  had  notice  and  that  he  refused  to 
pay  &c. 

To  this  declaration  there  is  a  general  demurrer  and  a  joinder 
in  demurrer. 

This  demurrer,  as  it  has  been  argued  at  the  bar,  calls  in 

*759 


2  SOUTH.]  FEBRUARY  TERM,  1820.  889 

Sterling  t.  Sinnickson. 

•question,  in  the  first  place,  the  form  of  the  pleading ;  and  in  the 
second  place,  the  ground  of  the  action. 

1.  It  is  said  that  when  the  action  does  not  arise  directly  upon 
the  writing  itself,  but  upon  some  future  contingency  specified  in 
the  writing,  it  is  necessary  to  aver  not  only  that  such  contin- 
gency has  happened,  but  also  that  by  reason  thereof  an  action 
.hath  accrued  to  the  plaintiff,  and  that  the  defendant  hath  had 
notice  thereof  but  refused  to  pay  &c.     And,  though  this  seems 
to  be  the  most  approved  form  in  the  books  of  entry,  yet  where 
the  contract  is  in  writing  and  under  seal,  as  is  the  case  here,  I 
cannot  see  that  the  omission  is  fatal.     All  the  facts  necessary  to 
.give  a  complete  right  of  action  are  alleged  in  the0  declaration ; 
they  are  alleged  in  such  manner  as  that  such  right  necessarily 
arises  from  them,  and  in  such  manner,  too,  as  to  be  susceptible 
of  denial,  or  avoidance  by  plea  properly  pleaded ;  this  is  all  that 
is  essential. 

But  there  is  another  fault  in  the  declaration  more  material 
than  this.  It  is  a  rule  that  in  actions  of  debt  the  writ  must  be 
for  the  specific  debt  or  sum  demanded,  and  not  for  the  damages 
of  detention.  It  is  a  rule,  too,  that  the  declaration  must  follow 
the  writ  and  not  be  variant  from  it.  Here,  the  writ  is  for  §2,000, 
the  declaration  for  $1,000  only,  and  the  debt  manifestly  but 
$1,000.  Both  these  rules,  therefore,  are  violated.  Nor  is  this 
irregularity  helped  by  laying  the  damages  of  detention  at  $2,000, 
for  in  this  form  of  action  we  proceed  for  the  debt,  and  the  dam- 
ages of  detention  are  only  consequential.  But  though  thi>  IK? 
so,  yet  *upon  a  general  demurrer  it  will  not  be  fatal,  for  suffi- 
cient appears  in  the  declaration,  as  it  is,  to  enable  the  court  to 
give  judgment  according  to  the  very  right  of  the  case. 

Upon  the  form  of  the  pleading,  therefore,  this  general  de- 
murrer cannot  be  maintained. 

2.  As  to  the  ground  of  action.     The  defendant  maintained — 
1.     That  this  is  a  contract,  the  subject  of  which  is  evidently 
useless  and  nugatory,  and,  therefore,  cannot  be  enforced  by  an 
action  at  law ;  and  2.  That  it  is  a  contract  in  restraint  of  mar- 
riage, and,  therefore,  inoperative  and  void. 

It  may  be  observed  in  general  that  in  considering  a  contract 

*760 


890  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Sterling  u.  Sinnickson. 

under  seal,  upon  a  general  demurrer,  we  are  precluded  from 
looking  into  the  consideration  of  it  further  than  the  same  is  ap- 
parent upon  the  face  of  the  contract  itself;  that  if  the  considera- 
tion do  appear  upon  the  face  of  it,  and  be  insufficient  to  sup- 
port it,  no  other  or  different  one  can  be  supplied  or  brought  to 
its  aid ;  and  that  the  sufficiency  or  insufficiency  of  such  consider- 
ation must  be  determined  by  the  same  rules  as  in  actions  upon 
simple  contracts.  And  it  may  be  observed,  too,  that  if  the  con- 
sideration so  apparent  be  in  its  very  nature  useless  and  unprofit- 
able, or  if  it  be  unlawful  and  against  the  public  policy,  it  is 
insufficient  to  support  the  contract.  For,  where  the  considera- 
tion, which  is  the  ground  of  the  promise,  or  the  promise,  which 
is  the  effect  of  the  consideration,  is  either  useless  or  unlawful, 
the  whole  contract  is  void.  1  Buls.  38.  They  are  mutually 
dependent  upon  one  another ;  the  .one  cannot  stand  without  the 
other. 

Now,  a  consideration  is  denned  to  be  a  cause  or  occasion  meri- 
torious that  requires  a  mutual  recompense.  Dyer  336.  All  idle 
and  insignificant  considerations,  therefore,  which  require  no 
mutual  recompense  are  looked  upon  as  none;  so  that  wherever 
a  person  promises  without  benefit  arising  to  the  promiser,  or  loss 
to  the  promisee,  the  promise  is  void.  %  Buls.  269.  It  is  there 
said  to  be  against  reason  to  undertake  to.  do  an  act  which  can 
produce  no  good  and  may  produce  evil ;  and  if  so,  it  is  geft- 
erally  against  reason  to  make  such  undertaking  the  consideration 
of  a  contract  for  the  payment  of  money. 

But  these  principles  are  so  familiar  that  it  would  be  wasting 
time  to  cite  authorities  to  prove  them.  It  was  so  in  the  Roman 
law ;  it  is  so  in  our  law ;  and  it  must  be  so  in  all  law  founded 
in  reason  and  common  sense.  Judging,  then,  from  the  face  of 
this  *instrurnent,  we  shall  probably  find  reason  to  say  that  it  is 
liable  to  both  the  objections  taken  by  the  defendant.  For — 

1 .  The  bill  is  for  the  payment  of  money.  The  consideration 
for  which  that  money  is  to  be  paid  is  expressed  in  the  bill  itself. 
It  is  the  forbearance  of  the  plaintiff  to  marry  for  six  months. 
The  parties,  so  far  as  appears  (and  we  are  to  supply  nothing  by 
intendment),  were  mere  strangers  to  one  another ;  the  marrying 

*761 


2  SOUTH.]          FEBRUARY  TERM,  1820.  891 

Sterling  t.  Sinnickson. 

or  not  marrying  of  the  plaintiff  was  a  matter  wholly  indifferent 
to  the  defendant  in  point  of  interest  or  profit.  If  he  married, 
it  could  do  the  defendant  no  injury;  if  he  remained  unmarri.d, 
it  could  benefit  him  nothing.  The  subject  of  the  contract  was 
evidently  useless  and  nugatory.  It  was  folly  in  the  defendant, 
and  worse  than  folly  in  the  plaintiff,  to  enter  into  it.  The  law 
will  never  execute  it. 

2.  Again.  The  contract  was  not  only  useless  and  nugatory, 
but  it  was  contrary  to  the  public  policy. 

Marriage  lies  at  the  foundation  not  only  of  individual  happi- 
ness, but  also  of  the  prosperity,  if  not  the  very  existence,  of  the 
social  state ;  and  the  law,  therefore,  frowns  upon  and  removes 
out  of  the  way  every  rash  and  unreasonable  restraint  upon  it, 
whether  by  way  of  penalty  or  inducement. 

If  these  parties  had  entered  into  mutual  obligations,  the  plaintiff 
not  to  marry  within  six  months  and  the  defendant  to  pay  him 
therefor  this  sum  of  $1,000,  there  can  be  no  doubt,  I  think, 
but  that  both  the  obligations  would  have  been  void.  In 
the  case  of  Key  v.  Bradshaw,  2  Vern.  102,  there  was  a  bond  in 
the  usual  form,  but  proved  to  be  upon  an  agreement  to  marry 
such  a  man  or  to  pay  the  money  mentioned  in  the  bond  ;  but 
the  bond  was  ordered  to  be  canceled,  it  being  contrary  to  the 
nature  and  design  of  marriage,  which  ought  to  proceed  from 
free  choice,  and  not  from  any  restraint  or  compulsion.  In 
the  case  of  Baker  v.  White,  2  Vern.  215,  A  gave  her  bond  to  B 
for  £100  if  she  should  marry  again,  and  B  gave  her  his  bond 
for  the  same  sum,  to  go  towards  the  advancement  of  her  daugh- 
ter's portion,  in  case  she  should  not  marry.  It  was,  as  Lord 
Mansfield  says,  in  Lowe  v.  Peers,  Burr.  2281,  a  mere  wager, 
and  nothing  unfair  in  it ;  and  yet  A  was  relieved  against  her 
bond,  because  it  was  in  restraint  of  marriage,  which  ought  to  be 
free.  A  bond,  therefore,  to  marry,  if  there  be  no  obligation  on 
the  other  side,  no  mutual  promise,  or  a  bond  not  to  marry,  are 
equally  against  law.  They  are  *both  restraints  upon  the  freedom 
of  choice  and  of  action  in  a  case  where  the  law  wills  that  all  shall 
be  free.  If  the  consideration  for  which  this  money  was  to  be 
paid,  then,  was  the  undertaking  of  the  plaintiff  not  to  marry, 

*762 


£92  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Sterling  v.  Sinnickson. 

that  consideration  was  unlawful ;  he  would  have  been  relieved 
against  it,  either  at  law  or  in  equity ;  and,  if  so,  the  correspond- 
ing obligation  to  pay,  according  to  the  principle  before  stated,  is 
void. 

It  has  been  spoken  of  by  the  plaintiff  as  if  this  were  an  obli- 
gation to  pay  money  upon  a  future  contingency,  which  any  man 
has  a  right  to  make,  either  with  or  without  consideration ;  and 
as  if  the  not  marrying  of  the  plaintiff  were  not  the  consideration 
of  the  obligation,  but  the  contingent  event  only,  upon  which  it 
became  payable.  But  I  think  this  is  not  a  correct  view  of  the 
case.  Where  the  event  upon  which  the  obligation  becomes 
payable  is  in  the  power  of  the  obligee,  and  is  to  be  brought 
about  by  his  doing  or  not  doing  a  certain  thing,  it  cannot  be  so 
properly  called  a  contingency;  it  is  rather  the  condition  meri- 
torious, upon  which  the  obligation  is  entered  into,  the  moving 
consideration  for  which  the  money  is  to  be  paid.  It  is  not, 
therefore,  to  be  considered  as  a  mere  contingency,  but  as  a  con- 
sideration, and  it  must  be  such  consideration  as  the  law  regards. 

Nor  does  it  at  all  vary  the  case  that  the  restraint  was  for  six 
months  only.  It  was  still  a  restraint,  and  the  law  has  made  no 
limitation  as  to  the  time.  Neither  can  the  plaintiff's  perform- 
ance, on  his  part,  help  him.  It  imposed  no  obligation  upon  the 
defendant ;  it  was  wholly  useless  to  him ;  the  contract  itself  was 
void  from  the  beginning.  Therefore,  in  my  opinion,  let  there 
be  judgment  for  the  defendant. 

ROSSELL,  J. 

Benjamin  Sterling  brought  an  action  against  the  defendant, 
Sinnickson,  on  a  sealed  bill,  to  which  the  defendant  demurred 
&c. 

The  counsel  for  the  defendant  contends — 1.  That  the  obligation 
itself  is  void.  2.  The  subject  of  it  being  to  restrain  marriage,  is 
unlawful.  3.  The  declaration  sets  out  no  consideration,  nor  is  there 
any  in  the  bill  itself;  and  cites  Pow.  on  Con.  167,  168,  169, 
J74,  231;  4  Burr.  2225;  2  Atk.  535;  2  Vern.  215;  Shep. 
Touch.  129.  The  counsel  for  the  plaintiff  denies  the  application 
of  those  authorities  to  this  case,  and  alleges  that  restraint  of 


2  SOUTH.]          FEBRUARY  TERM,  1820.  893 

Sterling  r.  Sinnickson. 

marriage  is  lawful  when  time,  place  or  person  is  named,  and 
cites  15  Vin.  *272  ;  Godol.  0.  L.  45;  Swinb.  281;  6  Vin.  96; 
1  Wils.  59;  3  P.  Win*.  65;  2  Fern.  308;  1  Atk.  392,  39S. 

It  is  a  general  principle  that  all  obligations  given  to  restrain 
marriage,  or  for  any  other  matter  operating  against  the  public 
policy  and  interests  of  the  nation,  are  void.  This  sealed  bill, 
then,  being  given  to  restrain  the  marriage  of  B.  Sterling,  is  void, 
unless  something  shall  be  found  to  take  it  out  of  this  general 
rule.  Viner,  Godolphin,  Swinburne  <fec.  lay  it  down,  wheu 
speaking  of  legacies,  that  a  total  restraint  of  marriage,  in  a  will, 
is  unlawful  and  void,  but  not  so  if  confined  to  time  and  person,, 
and  that  testator  may  leave  his  daughter  a  legacy  if  she  does  not 
marry  before  she  is  twenty  <fec. ;  and  this  from  prudential  motives,, 
allowable  in  law.  So  he  may  restrain  his  widow  from  marrying, 
for  a  certain  period,  as  it  may,  perhaps,  be  necessary  that  she 
should  take  care  of  and  educate  his  children ;  but  some  of  the 
same  authorities  add,  "  this  could  not  be  done  by  a  stranger." 
And  I  find  no  case  but  in  that  of  legacies  (with  one  exception 
of  a  gift),  that  gives  validity  to  an  instrument,  when  made  in 
contradiction  to  the  principle  first  mentioned.  And  the  principle 
of  time,  place  and  person  appears  to  apply  to  legacies  only, 
unless  for  a  good  consideration.  5  Vin.  Abr.  94.  A  man  was 
bound  to  another  that  he  should  not  use  his  art  in  D.  in  such  a 
time.  Hull  said  if  the  plaintiff  was  present  he  should  go  to 
prison.  So  in  96,  bonds  restraining  a  man  as  to  the  exercise  of 
his  trade  are  void ;  so  to  a  husbandman  not  to  sow  his  land,  95  ; 
one  seeks  to  put  a  bond  in  suit  against  another,  who  promised 
not  to  marry  without  the  consent  of  friends,  was  ordered  not  to 
proceed.  In  the  present  case  there  is  no  good  consideration  set 
.  forth  in  the  instrument,  nor  could  any  be  devised  by  implication. 
I,  therefore,  am  of  the  opinion  that  no  action  can  be  maintained 
on  it.  It  is  against  the  general  policy  of  the  country ;  it  con- 
tains no  good  consideration. 

SOUTHARD,  J.,  assented  to  the  opinions  expressed  by  the  rest 
of  the  court. 

Judgment  for  defendant. 
*763 


894  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Coryell  v.  Croxall. 


*  LEWIS  S.  CORYELL  v.  THOMAS  CROXALL. 

1.  Suit  on  note  payable  without  defalcation  &c.  (a) 

2.  Plea,  payment  after  it  was  due,  and  notice  of  set-off. 

3.  Plea  and  notice  struck  off.  (6) 


In  case. 

The  declaration  was  upon  a  promissory  note  for  $250,  drawn 
by  defendant  in  favor  of  Claudius  F.  Le  Grand,  or  order,  and 
by  him  endorsed  to  Daniel  Croxall,  and  by  him  endorsed  to  the 
plaintiff,  payable  without  defalcation  or  discount. 

The  defendant  pleaded  payment,  by  him,  to  Le  Grand,  after 
the  note  became  due,  and  before  the  assignment  to  the  plaintiff, 
and  before  any  notice  of  the  assignment,  and  before  the  com- 
mencement of  this  suit. 

To  this  plea  is  subjoined  a  notice  that  the  said  Le  Grand,  after 
the  making  of  the  note  and  before  the  assignment  to  the  plain- 
tiff, and  before  the  commencement  of  the  suit,  was  indebted  to 
the  defendant  in  $500  for  goods,  wares  and  merchandise  sold 
and  delivered,  and  for  money  lent  and  advanced  to,  and  paid, 
laid  out  and  expended  for  the  said  Le  Grand,  and  for  money  had 
and  received  by  Le  Grand  to  and  for  the  use  of  the  defendant ; 
and  for  money  due  from  Le  Grand  to  defendant  for  interest ;  and 
upon  an  account  stated ;  and  that  the  said  sum  will  be  set  of 
against  the  sum  mentioned  in  the  said  promissory  note. 

(a)  See  Tillou  v.  Britton,  4  Hal.  120  ;  Sanderson  v.  Crane,  2  Or.  506  ;  Cum- 
berland Bank  v.  Hann,  3  Harr.  222;  Laubach  v.  Pursell,  6  Vr.  434;  Little  v. 
Cooper,  3  Stock.  224;  Duncan,  Sherman  &  Co.  v.  Gilbert,  5  Dutch.  521 ;  Hamil- 
ton v.  Vought,  5  Vr.  187 ;  Holcomb  v.  Wyckoff,  6  Vr.  35;  Acts  of  1871-13,  and 
Armour  v.  McMichael,  7  Vr.  92;   Youngs  v.  Little,  3  Or.  1. 

(b)  Anonymous,  2  Hal.  160  ;  Inhabitants  &c.  v.  Booraem,  5  Hal.  257  ;  Coxe  v. 
H igbee,  6  Hal.  395;  Little  v.  Bolles,  7  Hal.  171;  ShotweU  v.  Dennis,  2  Or.  501; 
Allen  v.  Whefler,  1  Zab.  94;  Hogencamp  v.  Ackerman,  4  Zab.  133  ;  see  Steven- 
son v.  Schencfc,  Perm.  *434- 

*764 


2  So'JTH.]  FEBRUARY  TERM,  1820.  895 

Van  Dien  v.  Hopper. 

Evnng  moved  to  strike  off  the  plea  and  notice  subjoined  thereto, 

and  read  Pat.  342. 

• 

Wall  answered,  and  referred  to  Chit.  144' 

COURT.     Let  the  plea  and  notice  be  struck  off  the  files,  and 
defendant  plead  in  twenty  days,  or  judgment  by  default. 


II  A  KM  AX  VAN  DIKN  v.  JOHN  H.  HOPPER. 

Owner  of  lands  lying  in  a  township  which  repairs  roads  by  hire  is  liable  for 
tax  although  he  resides  in  another  township  and  works  roads  there. 


A  case  was  submitted  for  the  opinion  of  the  court,  from  which 
the  following  facts  are  extracted. 

The  highways  in  the  township  of  Franklin,  in  the  county  of 
Bergen,  have  been  repaired,  by  hire,  since  1812,  during  all  which 
time  Van  Dien  has  been  an  inhabitant  of  the  township  of  New 
Barbadoes  in  that  county,  and  owner  and  possessor  of  lands  in 
Franklin.  The  inhabitants  of  New  Barbadoes  repair  *their  roads 
by  labor,  not  by  tax,  and  some  of  the  inhabitants  of  Franklin 
own  lands  there.  Van  Dien  assisted  in  repairing  the  roads  where 
he  resided.  In  1814  Franklin  voted  $3000  for  maintaining  their 
roads,  and  Van  Dien's  land  there  was  assessed  at  §8.22,  part  of 
the  said  amount.  The  collector  of  Franklin  gave  him  notice 
and  demanded  payment,  which  not  being  made  he  returned  his 
name,  with  other  delinquents,  to  a  justice  of  the  peace,  who 
issued  a  warrant  of  distress  and  sale,  with  a  list  of  the  delin- 
quents and  the  amount  of  tax  to  be  made  of  each,  and  delivered 
the  same  to  the  defendant,  Hopper.  Hopper,  in  virtue  of  the 
warrant,  took  a  horse  of  Van  Dien's  to  sell  and  make  the  tax, 
which  gave  rise  to  the  present  suit.  The  question  submitted  to 
Jthe  court  was,  Is  the  plaintiff  an  inhabitant  of  New  Barbadoes, 
who  works  the  roads  in  his  own  district,  but  owns  lauds  in 

*765 


896  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Ayres  v.  Van  Lieu. 

Franklin  where  the  roads  are  worked  by  tax  or  hire,  liable  to- 
pay  taxes  for  the  lands  he  owns  in  Franklin  for  the  maintenance 
of  the  roadS  in  that  township  ? 

jR.  Campbell,  for  plaintiff. 
G.  Cassedy,  for  defendant. 

BY  THE  COURT.  There  can  be  no  doubt  that  the  plaintiff  is 
liable  to  pay  the  tax.  Money  for  repairing  roads  is  to  be  assessed, 
levied  and  collected  in  the  same  manner  as  other  taxes.  See  Pat. 

267,284,325-328,404. 


EZRA  E.  AYRES  and  JOSEPH  VAN  DOREN  v.  P.  W.  VAN 

LIEU,  (a) 

1.  Interest  and  competency  of  witness. 

2.  Agent. 


In  error. 

This  action  was  brought  in  the  common  pleas  of  Middlesex,. 
and  verdict  and  judgment  given  for  defendant.  Two  bills  of 
exception  were  taken  at  the  trial,  and  writ  of  error  brought,  re- 
moving the  cause  to  this  court.  The  facts  of  the  case  are  very 
accurately  stated  in  the  opinions  which  were  pronounced.  Scud- 
der  argued  for  plaintiffs  in  error  at  September  term,  1819. 

(a)  The  delivery  of  a  bill  or  note,  either  of  the  debtor  or  of  a  third  party, 
is  not  payment  of  a  debt,  Coxe  v.  Hankinson,  Coxe  85  ;  Martin  v.  Steele,  Penn. 
*719;  Sayre  v.  Sayre,  Penn.  *1035 ;  Wilson  v.  Fisher,  1  Hal.  Ch.  493;  Corri- 
gan  v.  Trenton  Del.  Falls  Co.,  4  Hal.  Ch.  4S9 ;  Bird  v.  Davis,  1  McCart.  468; 
Freeholders  of  Middlesex?  .  Thomas,  5  C.  E.  Or.  39 ;  see  Hoyt  v.  Hoyt,  1  Harr. 
145.  Unless  the  holder  be  guilty  of  laches,  Snyder  v.  Findley,  Coxe  48  ? 
Shipman  v.  Cook,  1  C.  E.  Or.  251;  Freeholders  of  Middlesex  v.  Thomas,  5  C.  E. 
Or.  39. 


2  SOUTH.]  FEBRUARY  TERM,  1820.  897 


Avres  v.  Van  Lieu. 


KlRKPATRICK,  C.  J. 

This  is  a  writ  of  error  from  the  Middlesex  pleas  upon  two 
bills  of  exception  taken  at  the  trial  of  this  cause. 

The  plaintiffs  kept  a  lumber-yard  in  the  city  of  New  Bruns- 
*wick.  The  defendant  was  building  a  house  there  and  had  em- 
ployed one  David  Hagar  as  his  carpenter.  In  order  that  the 
lumber  for  the  building  might  be  skillfully  selected,  and  the 
proper  quantities  purchased,  Hagar  was  sent,  from  time  to  time, 
to  the  lumber-yard  to  make  such  selection  and  purchase,  and  the 
parcels  purchased  were  charged  in  the  plaintiffs'  books  of  account 
against  the  defendant  as  taken  away  per  David  Hagar. 

After  the  plaintiffs,  at  the  trial,  had  proved  and  exhibited 
their  books  of  account  containing  these  charges,  they  called  the 
said  David  Hagar  as  a  witness  to  prove  the  facts  above  stated, 
and  to  fortify  the  charges  in  their  books.  To  the  admission  of 
this  witness  for  this  purpose  it  was  objected  by  the  defendant, 
and  the  objection  was  sustained  by  the  court  and  the  testimony 
rejected. 

This  is  the  subject  of  the  first  bill  of  exception,  and  I  am 
wholly  at  a  loss  to  discover  upon  what  ground  the  court  placed 
their  opinion. 

The  plaintiffs'  books  of  account,  if  they  were  evidence  at  all, 
were  evidence  of  the  sale  and  delivery  of  the  articles  to  the  de- 
fendant, and  the  note  showing  that  they  were  taken  away  per 
David  Hagar  is  a  particularity  which  rather  adds  to  than  detracts 
from  their  credit.  It  is  a  particularity,  too,  pretty  common 
among  dealers,  especially  in  the  small  way,  in  order  to  give  the 
greater  satisfaction  to  their  customers.  Now,  that  this  David 
Hagar,  who  was  sent  for  the  lumber,  to  whom  it  was  delivered, 
who  carried  it  away  and  worked  it  up  in  the  defendant's  build- 
ing, should  not  be  admitted  as  a  witness,  would  be  a  strange 
doctrine.  He  had  no  interest.  A  judgment,  on  whichsoever 
side  it  might  be,  upon  the  state  of  facts  now  developed,  could 
never  be  given  in  evidence  against  him,  or,  in  any  way,  subject 
him  to  an  action  upon  this  entry.  The  book  does  not  import, 
nor  is  there  any  evidence  that  the  credit  was  at  all  given  to 
Hagar,  or  to  the  defendant  upon  Hagar's  word  or  representation, 
*766  57 


898  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Ayres  v.  Van  Lieu. 

or  anything  that  he  had  said ;  it  is,  therefore,  to  be  taken  that  it 
was  given  upon  the  personal  application  of  the  defendant  himself, 
and  upon  the  plaintiff's  own  knowledge  of  his  circumstances. 
Hagar,  therefore,  being  in  no  way  interested,  was  a  lawful  wit- 
ness, and  certainly  the  subject-matter  to  be  proved  was  lawful. 
For  though  the  books  themselves  might  have  been  considered 
as  sufficient  evidence  of  the  sale  and  delivery  of  the  articles  to 
the  defendant,  yet  a  *party  may  always  give  other  evidence  to 
corroborate  his  books,  and  to  strengthen  his  charges  against  any 
individual.  Upon  this  objection,  therefore,  presented  on  this 
stage  of  the  trial,  I  think  the  court  were  mistaken  in  the  law. 

Again :  It  appeared,  from  the  plaintiff's  entries,  that  the  first 
parcel  of  the  lumber  was  delivered  on  the  19th  of  July,  1814, 
.and  the  last  on  the  15th  of  November,  in  the  same  year;  and, 
upon  the  production  of  their  ledger,  to  which  this  account  had 
been  transferred,  there  appeared,  on  the  credit  side  of  the  account, 
.this  entry,  viz. : 

1814.    Deer.  5.    By  David  Hagar's  note,  which,  when 

paid,  will  be  for  this  account  in  full,  $242  36 

It  appeared  further  that  this  note  had  been  put  into  the  bank 
for  collection  by  the  plaintiff,  and  again  withdrawn  at  the  request 
of  David  Hagar,  and  that  the  said  David  Hagar  was  in  credit, 
and  doing  business  till  sometime  in  January  or  February,  1816, 
when  he  made  an  assignment  of  his  property,  and  went  to  gaol. 

The  plaintiff  then  offered  to  prove,  by  the  said  David  Hagar, 
that  at  the  time  of  the  making  of  the  said  note,  and  ever  since, 
he  was  and  has  been  unable  to  pay  his  debts ;  that  the  plaintiffs 
called  upon  him  for  payment  when  the  note  became  due,  but 
that  he  could  not,  and  did  not  pay  it.  To  this  testimony  the 
defendant  objected,  because  the  said  David  Hagar  was  interested 
in  the  event  of  the  suit,  and  the  court  sustained  the  objection, 
and  rejected  the  witness.  And  in  this,  upon  the  case  now  before 
them,  it  appears  to  me  they  judged  rightly. 

David  Hagar  had  given  his  note  for  this  money.  His  assign- 
ment of  his  property  and  his  going  to  gaol,  even  if  he  had  taken 
the  benefit  of  the  insolvent  laws,  does  not  discharge  him  from 

*767 


2  SOUTH.]          FEBRUARY  TERM,  1820.  899 

Ayres  v.  Van  Lieu. 

the  debt ;  but  if,  by  his  testimony,  he  can  procure  a  verdict  to 
be  rendered  against  the  defendant,  and  fix  it  upon  him,  he  is 
then  exonerated,  for  the  plaintiff  cannot  recover  twice  for  the 
same  thing ;  it  would  be  an  immediate  discharge  from  a  direct 
and  positive  liability,  and  that  has  always  been  considered  as  a 
direct  interest.  Upon  the  matter  contained  in  the  second  bill  of 
€xception,  therefore,  there  is  no  error. 

But  even  if  it  were  otherwise,  and  the  court  had  erred  in  this 
last,  too,  as  I  think  they  did  in  the  first  objection,  it  would  be 
no  ground  to  reverse  the  judgment.  It  is  not  enough,  for  this 
purpose,  that  the  court  should  have  erred — they  must  have  erred 
in  *a  material  point ;  the  testimony  rejected  must  be  such  as 
might  lawfully  have  produced  a  different  verdict.  Now,  that  is 
not  the  case  here ;  for  admitting  everything  which  the  plaintiffs 
offered  to  prove  by  this  witness,  still  they  are  not  entitled  to 
recover,  (a) 

When  Hagar  gave  his  note  for  this  money  to  the  plaintiffs  it 
became  a  fair  charge  in  his  favor,  against  the  defendant,  and 
after  the  day  of  payment,  and  no  notice  of  a  demand  or  refusal, 
the  defendant  had  a  right  to  presume  it  paid,  and  to  settle  his 
account  with  Hagar  accordingly.  In  the  reason  of  the  thing, 
the  defendant  stands  precisely  in  the  situation  of  an  endorser. 
When  the  plaintiffs  accepted  this  note,  therefore,  in  full  of  the 
account,  if  paid,  the  construction  which  the  law  raises  upon  that 
<x>ndition,  if  paid  (if,  indeed,  it  considers  it  as  a  condition  at  all, 
of  which  I  very  much  doubt),  is,  that  they  shall  use  due  diligence 
to  obtain  payment  from  Hagar  when  the  note  becomes  due,  and, 
if  not  paid,  they  shall  give  the  defendant  notice  of  such  non- 
payment, and  transfer  to  him  the  note,  that  he  may  have  an 
opportunity  of  recovering  it  himself. 

Here,  instead  of  using  due  diligence,  they  withdrew  the  note 
from  the  bank,  where  it  had  been  placed  for  collection,  at  the  re- 

(a)  Smith  v.  RuecatUe,  £  Hal  S57 ;  Compfidd  v.  Ely,  1  Or.  15S ;  Dm,  Steel- 
man  v.  Steelman,  1  Harr.  66;  Princeton  Turnpike  Co.  v.  Gvlick,  1  Harr.  161 ; 
Van  Dyke  v.  Van  Dyke,  2  Harr.  478 ;  *  Rodenbough  v.  Rosebury,  4  Zab.  491; 
Smith  ads.  Perry,  5  Dutch.  74  ;  Lyons  v.  Davit,  1  Vr.  SOS  ;  Jotlin  v.  N.  J.  Car 
Spring  Co.,  7  Vr.  142  ;  Freeman  v.  BarUett,  18  Vr.  35. 

*768 


900  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Ayres  v.  Van  Lieu. 

quest  of  Hagar ;  they  gave  the  defendant  no  notice  of  the  non- 
payment at  the  day;  they  retained  the  note  in  their  hands 
eighteen  months  and  more,  while  he,  Hagar,  was  in  credit  and 
doing  business,  thereby  giving  him  a  new  credit  and  taking  the 
risk  upon  themselves.  If  the  money  is  lost,  therefore,  it  is  by 
their  negligence,  and  the  loss  must  fall  upon  them  and  not  upon 
the  defendant. 

From  this  view  of  the  case  I  think  the  judgment  must  be 
affirmed. 

ROSSELL,  J.,  concurred. 

SOUTHARD,  J. 

This  was  an  action  of  assumpsit  for  goods  &c.,  and  plea  of  the 
general  issue.  At  the  trial  the  plaintiffs  proved  their  book  of 
original  entries,  and  that  they  were  trading  under  the  firm  of 
Ayres  &  Vandoren.  The  bill  consisted  of  boards,  shingles  and 
scantlings,  amounting  to  about  $240,  all  of  which  appeared  by 
the  books  of  the  firm  to  be  regularly  charged  against  the  defend- 
ant, and  about  one-third  of  it  was  charged  to  defendant  "  per 
David  Hagar."  After  exhibiting  the  books  to  the  jury  the 
plaintiffs  offered  David  Hagar  as  a  witness  to  prove  that  at  the 
date  of  the  accounts  he  was  a  carpenter  in  the  em*ploy  of  the 
defendant,  who  ordered  him  to  go  to  plaintiff's  lumber-yard  and 
receive  the  several  articles  mentioned  in  the  account  as  received 
by  witness  and  have  them  charged  to  him,  and  that  he  did  go 
and  receive  them  and  work  them  up  for  defendant  upon  his 
house.  But  this  witness  was  objected  to  and  rejected  on  the 
ground  that  he  could  not  prove  his  own  agency.  Upon  this  re- 
jection a  bill  of  exception  was  taken,  and  this  presents  the  first 
question  raised  upon  this  writ. 

I  think  it  is  perfectly  manifest  that  the  court  erred  in  reject- 
ing this  witness.  So  far  as  the  evidence  had  proceeded  he  ap- 
peared merely  as  the  agent  or  servant  of  the  defendant  in  making 
the  purchases ;  as  such  he  was  clearly  competent.  BuL  289  ? 
Peake  105  &c. 

*769 


2  SOUTH.]          FEBRUARY  TERM,  1820.  901 

Ay  res  r.  Van  Lieu. 

After  the  rejection  of  Hagar  the  plaintiff  submitted  his  case 
upon  his  books  without  further  evidence. 

The  defendant  then  called  upon  the  plaintiffs  and  they  pro- 
duced, according  to  previous  notice,  a  note  in  the  common  form 
executed  by  Hagar  to  the  plaintiffs,  and  also  their  ledger,  in 
which,  on  the  credit  side  of  the  defendant's  account,  was  the  fol- 
lowing item  :  "  18 '14)  Deer.  5.  By  David  Hagar' s  note,  which, 
when  paid,  will  be  for  this  account  in  full,  $24&.36."  J.  Cortel- 
you  also  swore  that  he  had  a  conversation  with  defendant  and 
Ayres,  one  of  the  plaintiffs,  in  March  or  April,  1816,  in  which 
defendant  asked  Ayres  why  he  had  sued  or  was  going  to  sue  him. 
Ayres  answered  "  For  the  account."  Defendant  said  "  Why  did 
you  take  the  note  of  David  Hagar  for  the  money  ?  "  Ayres  re- 
plied he  was  just  as  willing  to  take  the  note  of  Hagar  as  of  the 
plaintiff,  for  then,  if  he  could  not  get  the  money  from  one  of 
them  he  could  from  the  other.  He  added  that  the  note  had  been 
put  in  the  bank  and  withdrawn  before  it  was  due,  at  Hagar's  re- 
quest, who  was  hard  run  for  money,  and  that  it  was  a  very  diffi- 
cult time  to  get  money.  The  witness  added  that  when  the  note 
became  due  he  considered  Hagar  as  solvent,  and  until  the  day 
before  he  assigned  his  property  to  assignees,  which  took  place  in 
January  or  February,  1816 ;  witness  trusted  him  only  a  few 
weeks  before  that  time  for  a  set  of  silver  spoons  and  lost  the 
price  of  them.  Here  the  defendant  rested ;  and  before  we  pro- 
ceed further  in  the  case  it  will  be  proper  to  determine  and  estab- 
lish the  effect  of  this  evidence. 

The  note  of  Hagar  was  for  the  whole  account,  as  well  what  *he 
received  for  defendant  as  what  defendant  received  without  his 
agency.  It  was  given  by  him  for  the  amount  of  defendant's 
debt.  What  was  the  effect  of  this  ?  It  did  not  of  itself  destroy 
this  account.  Without  other  proof  we  are  not  to  conclude  that 
it  was  such  a  payment,  that  the  original  debt  could  not  be  re- 
sorted  to.  It  may  have  been  either  a  payment  or  security,  and 
we  must  judge,  from  the  evidence  we  have,  which  it  was.  The 
probability  is  that  it  was  a  security,  because  we  can  see  no  reason 
why  Hagar  should  pay  Van  Lieu's  debt  or  why  the  plaintiff 
should  sooner  trust  Hagar  than  Van  Lieu.  The  entry  on  the 

*770 


902  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Ay  res  v.  Van  Lieu. 

book,  in  its  terms  and  fair  import,  confirms  the  probability — 
"  which,  when  paid,  will  be  for  this  account  in  full."  It  is  not 
now  a  payment;  it  will  be  at  some  future  period.  At  what 
period?  When  paid,  and  therefore  not  until  paid.  If  never 
paid,  then  never  a  payment.  But  a  payment  of  what  ?  Not  of 
itself,  but  of  the  account.  If  never  paid,  the  account  stands 
undischarged.  But  undischarged  against  whom  ?  Against  the 
person  to  whom  it  is  charged ;  against  Van  Lieu,  not  against 
Hagar.  This  note,  then,  was  not  an  absolute  payment.  It  was 
only  a  security,  and  the  entry  is  made  in  the  only  way  in  which 
the  plaintiffs  could  make  it  injustice  to  the  defendant  and  them- 
selves ;  in  the  way  in  which  all  our  merchants,  I  believe,  make 
the  entries  when  they  take  a  note  for  an  account.  If  the  note  is 
lost,  or  difficulty  arises  with  it,  the  account  is  still  their  protec- 
tion. The  declarations  of  the  plaintiffs  are  also  in  accordance 
with  the  idea  that  this  note  was  security  :  "  I  was  as  willing  to 
take  Hagar's  note  as  yours,  for  then  if  I  could  not  get  it  of  one 
I  could  of  the  other."  In  other  words,  I  Was  willing  to  have 
two  instead  of  one  bound  for  the  account,  and  this  could  not  be 
if  the  account  was  discharged  and  the  defendant  forever  freed. 
Again,  the  taking  of  the  note  out  of  the  bank  was  no  injury  to 
either  if  Hagar  was  security  only.  Indeed,  it  could  in  no  light 
injure  Van  Lieu.  If  it  was  payment,  then  it  could  not  affect 
him,  let  it  be  used  as  it  might.  If  it  was  security,  Van  Lieu 
had  no  right  to  complain  that  the  creditor  would  not  compel  his 
security  to  pay  his  debt  before  he  resorted  to  him.  Nor  could 
Hagar  complain  of  this  act.  The  holder  of  the  note  had  a  right 
to  use  it  as  he  pleased.  It  was  not  an  endorsed  note.  No  notice,, 
no  prosecution  of  it  was  necessary  to  bind  either  the  maker  or 
third  per*son.  He  might  use  it  as  he  pleased,  even  discharge  it, 
and  the  defendant  would  still  be  bound. 

So  far,  then,  as  we  have  proceeded,  the  defendant  is  a  debtor, 
unrelieved  by  any  assumpsit  of  Hagar.  Hagar  is  a  security,, 
and  as  such  liable  to  pay,  if  the  plaintiff  fail  to  recover  of  the 
defendant.  And  had  the  cause  rested  here,  I  do  not  see  how  it 
was  possible  for  the  jury  to  avoid  a  verdict  for  the  plaintiff 
upon  the  evidence, 

*771 


2  SOUTH.]  FEBRUARY  TERM,  1820.  903 


Avres  r.  Van  Lieu. 


The  plaintiff,  by  way,  I  presume,  of  answer  to  the  evidence  of 
defendant,  offered  Hagar  again  to  prove  that  at  the  date  of  the 
note  he  was  insolvent,  and  had  so  continued  ever  since ;  that 
the  plaintiff  had  demanded  payment  when  the  note  became  due 
and  tried  every  effort  to  get  the  money  of  him,  but  could  not ; 
he  was  not  able  to  pay.  The  defendant  again  objected  to  him, 
and  he  was  again  declared  incompetent.  And  if  the  view  which 
I  have  taken  of  the  case  be  correct,  he  was  interested  and  incom- 
petent. He  was  interested  to  the  amount  of  the  claim.  He  was 
obliged  to  pay  if  defendant  did  not.  It  does  not  alter  this  view 
of  the  matter  that  he  had  assigned  his  property  and  taken  the 
benefit  of  the  insolvent  laws.  That  only  freed  his  person  from 
imprisonment,  but  left  the  claim  in  force,  and  his  property,  if  he 
should  obtain  any,  liable. 

It  does  not  appear  from  the  case  whether  there  was  more  evi- 
dence. If  there  was  not,  I  think  great  injustice  has  been  done 
by  the  verdict.  The  evidence  was  all  on  plaintiffs'  side,  and  I 
see  nothing  to  call  their  claim  in  question.  But  there  might 
have  been  other  evidence,  and  is  upon  a  writ  of  error,  where  an 
inquiry  into  the  propriety  of  the  verdict  does  not  seem  to  be 
proper,  but  where  we  must  judge  upon  the  errors  in  the  record. 

In  review  of  the  case  I  think  that  the  court  was  right  in  the 
last  bill  of  exception;  that  they  were  wrong  in  the  first.  And 
the  only  serious  doubt  which  I  have  felt  has  been  whether,  upon 
a  writ  of  error,  where  the  court  erred  on  the  first  bill,  and  it 
appeared  by  the  second  that  there  were  facts  which,  if  before 
them,  would  have  justified  their  first  opinion,  it  was  right  still 
to  reverse.  But  I  do  not  see  that  this  is  proper.  It  would  be 
shutting  our  eyes  upon  the  law  of  the  whole  case  taken  together, 
and  it  would  do  no  good  to  send  back  a  case  because  a  witness 
was  not  sworn  when  it  appears  that  he  is  incompetent.  I  am 
therefore  constrained  to  unite  in  affirming  the  judgment 

Judgment  affirmed. 


904  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


State  v.  Ludlow. 


*THE  STATE  v.  T>.  LUDLOW. 

1.  Indictment  for  perjury  on  insolvent  application  need  not  set  out  the 
manner  in  which  common  pleas  obtain  jurisdiction,  (a) 

2.  Interrogatories  need  not  necessarily  be  in  writing. 


Motion  to  quash  indictment  for  perjury  upon  an  application 
for  the  benefit  of  the  insolvent  laws,  found  in  the  oyer  and 
terminer  of  Essex  at  September  term,  1816.  It  was  removed 
here  by  certiorari,  and  argued  at  November  term  by  Scudder  and 
Halsey,  for  defendant,  and  Attorney- General,  for  the  state.  The 
objections  to  the  indictment  are  shortly  stated  in  the  opinion  of 
the  court  by — 

SOUTHAKD,  J. 

This  is  an  indictment  for  perjury  in  taking  a  false  oath  before 
the  common  pleas  of  Essex  when  the  defendant  was  examined 
upon  .his  application  for  the  benefit  of  the  insolvent  laws.  The 
indictment  was  removed  hither  by  certioran,  and  several  objec- 
tions are  taken  to  its  validity  arising  upon  the  face  of  it ;  and 
one  arising  from  extrinsic  matter  which  the  attorney-general 
and  defendant  agreed  should  be  considered  upon  this  motion. 

It  is  objected — 1.  That  the  indictment  does  not  show  that 
such  petition  as  is  required  by  the  statute  was  presented,  or 
when,  where  and  how  the  petition  was  presented.  2.  It  does 
not  show  that  the  court  appointed  the  7th  of  September,  1816, 
for  the  hearing,  that  not  being  within  the  regular  terms.  3.  It 
does  not  state  that  the  hearing  was  at  any  stated  term.  In 
answer  to  all  these  objections  I  think  it  is  sufficient  to  say  that 
the  indictment  alleges  that  there  was  a  regular  and  legal  hear- 
ing before  a  competent  court,  upon  the  application  of  the  de- 
fendant for  the  benefit  of  the  insolvent  law.  How  the  court 
came  to  sit  on  that  day ;  what  was  its  authority,  and  how  far  the 

(a)  State  v.  Dayton,  5  Zab.  49;  Dodge  v.  The  State,  4  Zab.  456  ;  The  State 
v.  Beard,  1  Dutch.  384. 

*772 


SOUTH.]  FEBRUARY  TERM,  1820.  905 


State  t.  Ludlow. 


proceedings  of  the  insolvent  were  regular,  are  matters  which 
must  appear  at  the  hearing,  but  need  not  appear  or  be  further 
set  out  upon  the  face  of  the  indictment.  The  manner  in  which 
the  court  obtains  jurisdiction  never  appears  on  the  indictment. 
It  is  further  agreed  that  the  interrogatories  were  not  admin- 
istered to  this  defendant,  nor  answers  given  in  writing ;  and  it  is 
argued  that  this  is  fatal.  The  court,  when  it  sits  to  hear  an  in- 
solvent, must  strictly  pursue  the  authority  and  directions  of  the 
statute.  The  statute  says  that  he  shall  be  examined  on  interrog- 
atories. What  are  interrogatories  ?  The  usual  technical  mean- 
ing of  the  word  in  the  court  of  chancery  is  a  question  in  writing ; 
*its  ordinary  meaning  in  common  discourse  is  a  question.  I  do 
not  know  of  any  fixed,  certain  and  invariable  meaning  in  com- 
mon law  courts.  What  the  legislature  means  in  our  insolvent 
laws  is  to  be  sought,  perhaps,  most  certainly,  in  those  laws  them- 
selves. I  am  not  aware  of  any  other  word  being  used,  except 
this,  to  express  the  questions  which  the  applicant  must  answer  ; 
and  it  is  always  used  without  any  addition  to  explain  or  add  to 
its  meaning  except  once.  In  a  statute  passed  in  1811  the  in- 
solvent is  directed  to  be  examined  upon  interrogatories  in  writ- 
ing. This  law  was  soon  after  repealed.  I  think  the  inference 
is  that  the  legislature  supposed  there  was  a  distinction  between 
interrogatories,  and  interrogatories  in  writing;  and  that  when 
they  mean  the  latter  they  say  so.  This  objection,  then,  cannot 
prevail,  although  it  would  certainly  be  the  best  and  safest  course 
always  to  interrogate  the  applicant  in  writing,  that  all  his  answers 
may  be  filed  among  the  records  of  the  court. 

Motion  overruled  and  defendant  put  to  plead. 
*773 


906  NEW  JERSEY  SUPREME  COURT.     [5 


Sterling  w.  Potts. 


THOMAS  C.  STERLING  v.  STACY  POTTS,  surviving  executor 
of  STACY  POTTS,  deceased. 

1.  Evidence  necessary  to  prove  loss  of  paper  before  contents  can  be  proved,  (a) 

2.  Liability  of  husband  for  contracts  of  wife.  (6) 


In  case. 

This  action  was  brought  for  goods  sold  and  delivered  to  the 
testator,  and  was  tried  at  the  Hunterdon  circuit,  October,  1819, 
before  Justice  Southard.  A  verdict  for  $563.08  was  given  for 
the  plaintiff,  which  was  about  the  amount  of  the  account  in  his 
ledger.  On  the  coming  in  of  the  posted,  a  rule  to  show  cause  for 
setting  aside  the  verdict  was  granted,  and  the  following  reasons 
filed :  1.  That  the  verdict  was  contrary  to  law  and  evidence. 
2.  That  the  judge  would  not  permit  the  defendant  to  prove  the 
contents  of  a  certain  receipt,  alleged  to  have  been  given  by  the 
plaintiff  ta  the  testator,  although  the  defendant  gave  sufficient 
evidence  of  the  loss  of  the  receipt.  3.  Because  the  jury  assessed 
damages  for  certain  goods,  of  which  there  was  no  evidence ;  and 
for  certain  other  goods  purchased  by  the  wife  of  testator,  without 
his  order  or  consent,  while  in  his  last  moments,  and  incapable  of 
speaking,  and  which  never  came  to  his  use. 

*The  report  of  the  judge  shows  the  following  case:  The 
plaintiff,  a  merchant,  proved  his  day-book  and  ledger,  and  gave 
them  in  evidence.  They  contained  the  same  charges.  Some  of 
the  articles  were  charged  to  testator's  wife.  Sometimes  she  got 

(a)  Witts  v.  McDole,  ante  501  ;  Den  v.  Pond,  Coxe  S79;  Bozorth  v.  David- 
son, Perm.  *617 ;  Ford  v.  Munson,  1  South.  93.;  Fox  v.  Lambson,  S  Hal.  275 ; 
Kinywood  v.  Bethlehem,  1  Gr.  221 ;  Suydam  v.  Combs,  S  Or.  183 ;  Insurance  Co. 
v.  Woodruff,  2  Dutch.  541 ;  Miller  v.  Wack,  Sax.  204;  Smith  v.  Axtell,  Sax.  494; 
Stafford  v.  Stafford,  Sax-.  524;  Wyckoff  v.  Wyckoff,  1  C.  E.  Or.  401;  Clark  v. 
Nornbeck,  2  C.  E.  Or.  430  ;  see,  also,  Den,  Popino  v.  McAUiiter,  2  Hal.  46? 
Condict  v.  Wood,  1  Dutch.  319. 

(b)  Campfield  v.  Ely,  1  Or.  150;  Miller  v.  Miller,  Sax.  S86 ;  see  Cory  v.  Cory,. 
S  Stock.  400. 

*774 


2  SOUTH.]  FEBRUARY  TERM,  1820.  907 

Sterling  r.  Potto. 

goods  and  paid  for  them  out  of  her  own  money ;  and  many  arti- 
cles charged  to  him  were  got  by  her  direction  and  received  and 
used  by  him.  Once,  when  he  was  very  sick,  she  got  a  consider- 
able bill,  and  on  his  getting  better  he  remarked  that,  judging 
from  it,  she  wished  and  expected  he  would  die ;  but  being  re- 
proved by  the  person  to  whom  he  spoke,  and  reminded  that  it 
was  through  her  kind  and  affectionate  nursing  that  he  recovered, 
he  admitted  it  and  said,  as  he  often  did  at  other  times,  that  she 
was  one  of  the  best  wives  in  the  world ;  and,  also,  that  he  would 
pay  the  bill  when  he  got  his  interest-money  from  his  sons.  He 
used  the  articles,  and  praised  part  of  them  very  much.  One  item 
in  plaintiff's  account  was,  "  To  sundries,  as  per  bill,  $273.04." 
This  item  he  offered  to  support  by  proving  a  bill  of  particulars, 
and  that  they  were  delivered  at  the  date,  which  was  objected  to, 
but  permitted.  He  also  offered  to  show  the  defendant's  situation 
as  to  wealth,  family,  connections  and  health,  in  order  to  prove 
that  the  articles  were  proper  for  his  situation  &c.  This,  also, 
was  objected  to,  but  permitted. 

The  testator  was  between  eighty-four  and  eighty-six  years  old, 
very  respectable,  very  rich,  had  a  numerous  train  of  family  con- 
nections, was  very  sickly,  and  required  much  care  and  attention 
from  family  and  friends,  and  kept  but  one  servant.  This  wife 
was  his  third  wife,  thirty  years  younger  than  himself;  had 
children  by  a  former  husband,  but  not  by  him ;  was  laborious, 
frugal  and  affectionate.  He  died  on  Sunday,  late  at  night.  The 
bill  last  mentioned  was  bought  by  a  female  acquaintance  of  hers, 
by  her  direction  and  without  his,  on  the  day  before  his  death, 
and  the  articles  left  until  they  should  be  sent  for,  which  was  done 
on  Sunday  evening.  They  were  received  by  Mrs.  Potts,  in  the 
house,  about  candlelight,  an  hour  after  he  became  speechless,  and 
some  hours  before  he  died.  Part  of  them  were  groceries,  part 
not.  Some  of  the- groceries  were  used  for  the  visitors  and  friends 
before  he  died  and  at  the  funeral,  and  were  necessary,  there  being 
none  in  the  house.  One  or  two  of  the  other  articles  were  used 
by  her  at  the  funeral ;  some  were  of  a  kind  not  to  be  soon  used  ; 
but  the  whole  bill,  in  the  opinion  of  the  witnesses,  *\vas  necessary 
and  suitable  to  the  condition  and  degree  of  the  family.  Such  as 

*775 


908  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Sterling  v.  Potts. 

were  not  used  were  in  the  house  at  the  appraisement,  but  it  was 
not  shown  whether  they  were  appraised  or  not.  The  bill  of 
particulars  was  read  to  the  jury,  and  the  plaintiff  rested.  Two 
or  three  small  items  were  not  in  the  day-book,  nor  proved  to 
have  been  delivered. 

The  defendant  offered  to  prove  the  contents  of  a  paper  contain- 
ing an  account  which  testator  had  paid  to  plaintiff,  on  which  was 
a  receipt  and  engagement  by  plaintiff  not  to  trust  his  family 
except  upon  a  written  order  from  him.  The  court  directed  its 
existence  and  loss  to  be  proved.  It  was  proved  by  one  witness 
that  about  six  or  eight  months  before  testator  died  he  showed  wit- 
ness an  account  from  plaintiff,  which  he  had  paid,  on  the  back  of 
which  there  was  a  written  direction  about  trusting  his  family, 
signed  by  plaintiff.  Witness  was  an  appraiser  of  the  estate  a 
few  days  after  his  death,  and  was  requested  to  look  for  that 
paper ;  he  did  so  among  all  the  papers  shown  to  him,  but  did  not 
find  it.  The  executor,  then,  had  the  key  of  the  place  where  they 
were  kept,  but  "  the  lock  was  shackling."  After  the  appraise- 
ment they  were  carried  in  a  trunk  to  W.  Potts's  house.  Another 
witness  saw  the  endorsement  on  the  account  about  the  same  time  ; 
he  was  testator's  nephew,  transacted  a  good  deal  of  business  for 
him  and  with  him,  and  did  not  know  of  any  other  place  where 
lie  kept  his  papers  except  those  two  examined  by  the  appraisers. 
Defendant  then  offered  evidence  of  the  contents  of  the  paper,  but 
the  judge  did  not  think  the  proof  had  been  sufficient  to  justify 
its  admission. 

WaU,  in  support  of  the  rule.  There  are  several  exceptions  to 
the  plaintiff's  account.  1.  A  part  of  the  goods  were  for  the 
wife,  who  had  a  separate  property,  and  charged  to  her  in  the 
day-book,  but  transferred  to  his  account  in  the  ledger  without 
his  order  or  direction,  and  there  is  no  sufficient  proof  that  they 
•came  to  his  use.  2.  A  part  of  the  items  was  not  supported  by 
the  day-book,  nor  proof  of  delivery.  3.  The  wife  has  no  abso- 
lute power  to  bind  her  husband  by  contract,  even  for  necessaries, 
without  his  assent,  precedent  or  subsequent.  This  assent  may  be 
implied  by  cohabitation,  unless  the  contrary  appears.  Here  no 


2  SOUTH.]  FEBRUARY  TERM,  1820.  909 

Sterling  v.  Potts. 

assent  could  be  implied  as  to  the  largest  item  of  $273.04.  He 
was  in  extremis.  The  goods  were  delivered  when  he  could  not 
speak,  *and  there  is  no  reasonable  probability  that  they  were  all 
necessaries.  1  Boo.  488  ;  1  Esp.  238. 

2.  Proof  of  the  contents  of  the  receipt  ought  to  have  been 
admitted.  4  Cam.  Dig.  92;  Ambl.  24.7  ;  1  V&s.  344  ;  2  Johns. 
Gas.  488 ;  1  Atk.  446  ;  Sw.  Ev.  31;  2  Doll.  116 ;  3  Mass. 
236  ;  1  Oaines's  Oas.  27  ;  2  Chines' s  Cos.  263  ;  1  El  R.  662  ; 
5  Mass.  101. 

L.  H.  Stockton,  in  answer.  1.  The  evidence  of  the  alleged 
contract  between  the  parties  was  properly  rejected.  The  original 
should  have  been  produced  unless  its  destruction  was  clearly 
shown ;  mere  allegation  that  it  could  not  be  found  was  not  suffi- 
cient. It  had  been  in  testator's  hands — he  might  have  destroyed 
it ;  the  executor,  who  had  the  key,  might,  to  effect  his  purposes, 
have  taken  it  away.  Evidence  of  contents  is,  of  all  others,  most 
easily  made  by  the  party  and  most  readily  perverted  ;  proof  of 
loss  ought,  therefore,  to  be  strict.  Qilb.  4>  5,  15,  16 ;  Esp. 
144;  %  Bl.  Com.  368;  Pat.  44. 

2.  The  verdict.     It  is  not  shown  that  the  jury  considered  the 
small  items,  which  were  not  proved  ;  without  them,  the  ordinary 
allowance  of  interest  would   have  made  a   larger  sum.      The 
goods  most  questioned  were  delivered  at  testator's  in  his  lifetime, 
and,  of  course,  to  his  use ;  they  were  necessary  for  the  condition 
and  state  of  his  family,  and  used  in  his  lifetime  and  at  his  funeral. 
That  he  was  sick,  and  therefore  the  wife  was  not  to  buy  neces- 
saries for  his  comfort,  lest  he  should  die  and  the  merchant  lose, 
is  perfectly  absurd  doctrine.     Besides,  the  merchant  was  not 
bound  to  know  his  situation.     He  lived  with  her,  was  nursed  by 
her,  had  paid  bills  which  she  had  contracted,  and  was,  therefore, 
bound  in  law  to  pay  this.     4  V*n.  121.     It  is  enough  for  plain- 
tiff that  these  facts  were  proper  for  the  consideration  of  the  jury, 
and  that  the  jury  has  found  for  him.     Coxe  228 ;  1  Bac.  Ab. 
418. 

3.  There  has  been  a  full  trial,  and  no  injustice  is  apparent. 

*776 


910  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Burroughs  v.  Thome. 

1  SI.  R.  1,  418  ;  1  Wile.  %%  ;  2  Wils.  307  ;  6  Bac.  Ab.  664  S 

2  SaOe.  334  ;  3  Wils.  46. 

Wall  replied. 

BY  THE  COURT.  We  do  not  perceive  that  any  error  has  been 
committed  by  the  court,  or  that  any  injustice  has  been  done  by 
the  jury.  Let  the  rule  be  discharged  and  judgment  entered  for 
the  plaintiff. 


*REUBEN  BURROUGHS  v.  SAMUEL  THORNE. 

1.  Award  set  aside  because  arbitrators  rejected  competent  evidence,  (a) 

2.  Executors  conveying  testator's  right  to  land,  without  warranty,  compe- 
tent in  action  respecting  premises. 

Burroughs  commenced  an  action  for  a  trespass  upon  a  very 
narrow  strip  of  land  lying  between  the  farms  of  the  parties,  which 
had  long  been  the  subject  of  expensive  litigation  between  them. 
They  then  entered  into  an  arbitration-bond,  and  agreed  to  make 
their  submission  a  rule  of  court.  The  arbitrators  made  an  award 
by  which,  among  other  things,  they  ordered  that  all  suits  pend- 
ing should  be  no  further  prosecuted,  and  adjudged  the  line  in 
favor  of  Burroughs.  Thorne  took  a  rule  to  show  cause  why  the 
award  should  not  be  set  aside,  and  filed  several  reasons,  among 
the  rest,  that  the  arbitrators  rejected  as  witnesses  Joseph  Thorne 
and  Isaac  Thorne,  offered  by  the  defendant  to  prove  the  declara- 
tions and  admissions  of  Joseph  Burroughs,  the  father  of  plain- 
tiff, under  whom  he  claims  and  who  was  then  in  the  ownership 
and  possession  of  the  land  wken  the  declarations  were  made. 
The  objection  to  the  witnesses  was  that  they  were  the  executors 

(a)  The  declarations  of  a  former  owner  while  in  possession  are  competent, 
Tmmsend  v.  Johnson,  Perm.  *706  ;  Ferguson  v.  Reeve,  1  Harr.  194  ;  Tomlin  ads. 
Cox,  4  Harr.  77;  Ten  Eyck  v.  Bunk,  2  Dutch.  513;  Homer  v.  Stillwell,  6  Vr. 
307;  see  Homer  v.  Leeds,  1  Dutch.  106;  Cox  v.  Baird,  6  Hal.  105. 

*777 


2  SOUTH.]  FEBRUARY  TERM,  1820.  911 

Lanning  v.  Shute. 

of  Thomas  Thorne,  deceased,  and  as  executors  had  sold  to  de- 
fendant such  right  to  the  premises  as  their  testator  had,  and 
given  a  deed  without  warranty. 

Ooxe,  for  Thorne. 
Armstrong,  for  Burroughs. 

THE  COURT.  It  is  greatly  to  be  regretted  that  the  spirit  of 
litigation  which  has  existed  so  strongly  in  this  case  should  re- 
vive any  opportunity  of  nourishment  from  the  decision  of  the 
court ;  but  the  evidence  offered  was  manifestly  competent  and 
the  witnesses  free  from  all  legal  exception.  The  arbitrators  cer- 
tainly erred  in  refusing  to  hear  them,  and  the  award  must  be  set 
aside. 

Upon  the  report  of  the  arbitrators  being  made,  Burroughs,  by 
leave  of  the  court,  and  in  obedience  to  the  award,  discontinued 
his  action  of  trespass.  Armstrong  therefore  prayed  leave  to 
vacate  the  rule  for  discontinuance  and  permit  the  suit  to  remain 
in  force,  which  was  granted. 


*JOHN  LANNINQ  v.  WILLIAM  SHUTE. 

1.  Pleading  amended  after  joinder  in  demurrer,  (a) 

2.  Nil  debet  bad  plea  to  declaration  on  judgment  in  New  York.  (6) 


In  debt. 

The  declaration  sets  out  a  judgment  in  the  supreme  court  of 

(a)  Candit  v.  Neighbor,  7  Hal.  SSO ;  see  Williamson  v.   Updike,  *  Or.  970. 
But  not  after  judgment,  Gulick  v.  Loder,  £  Or.  57£,  S  Or.  4*6. 

(b)  Vanuxem  v.  Hazelhursts,  1  South.  19X,  note  (a) ;  Olden  v.  Hallct,  ante  466; 
Lanning  v.  Shute,  ante  55S ;  Field  v.  Gibbs,  1  Pet.  C.  C.  155;  see  Moulin  v. 
Trenton  Ins.  Co.,  4  Zib.  222  ;  Maekay  ads.  Gordon,  5  Vr.  S86  ;  Robert  v.  Hodge*, 
1  C.  E.  Or.  300  ;  Davis  v.  Headley,  7  C.  E.  Or.  116. 

*778 


912  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Lanning  v.  Shute. 

the  state  of  New  York,  in  an  action  of  slander,  for  $1,986.69  ; 
that  it  still  remains  in  force,  not  satisfied  or  vacated,  whereby  an 
action  accrued  &c.  The  defendant  pleaded,  first,  nul  tiel  record  ,- 
secondly,  nil  debet,  and  annexed  to  it  a  notice  of  various  par- 
ticulars, which  he  should  prove  under  it. 

Upon  the  first  plea  issue  was  joined.  To  the  second  the  plain- 
tiff filed  a  demurrer.  The  defendant  joined  in  demurrer,  and 
the  case  was  noticed  for  argument. 

Chetwood  moved  to  amend  the  declaration  by  altering  the  day 
on  which  the  judgment  in  New  York  was  laid.  Scudder  ob- 
jected that  it  was  too  late,  but  the  court  directed  the  amendment 
to  be  made  on  payment  of  proper  costs. 

Chetwood,  for  plaintiff.  The  demurrer  brings  up  the  question 
as  to  the  effect  of  a  judgment  in  another  state  under  the  consti- 
tution of  the  United  States.  Argument  is  not  necessary  ;  the 
cases  need  only  be  cited.  #  Datt.  302  ;  Brown's  Rep.  (appendix) 
30;  7  Ora.  481;  3  Wheat. 


Scudder,  in  answer.  The  courts  of  other  states  are  foreign, 
their  judgments  foreign,  and  must  be  pleaded  as  facts.  The 
constitution  and  laws  of  congress  were  only  designed  to  over- 
come the  necessity  of  proving  them  as  foreign  judgments,  by 
witnesses,  and  to  permit  them  to  be  proved  by  certificate. 
Gilb.  Ev.  19.  The  law  of  congress  of  May  26th,  1790,  directe 
the  statutes  of  the  several  states  to  be  authenticated  by  their  re- 
spective seals,  and  then  gives  them  full  faith  &c.  in  the  very 
words  respecting  judgments;  yet,  still  thus  authenticated,  the 
statutes  remain  foreign  and  of  no  validity.  The  words  "  full 
faith  and  credit  "  have  been  misapprehended,  and  are  sometimes 
misquoted  and  read,  effect  (2  Doll.  30%\  a  meaning  they  were 
never  designed  to  have.  Under  the  doctrine  contended  for,  if  a 
judgment  were  obtained  under  the  penal  laws  of  New  York, 
which  are  directly  in  opposition  to  our  own,  this  court  might  be 
compelled  to  carry  it  into  effect,  and  even  help  to  punish  a  citi- 
zen of  New  Jersey  for  resisting  the  process  of  New  York,  on 


2  SOUTH.]  FEBRUARY  TERM,  1820.  913 

Lanning  ».  Shtite. 

our  docks,  within  our  "own  jurisdiction.    See  laws  of  New  York 
and  New  Jersey.     Pat.  848  ;  1  Caines  460  ;  Peters  74. 

Ewing  declined  the  general  argument,  it  having  been  hereto- 
fore sufficiently  discussed  (1  Mass.  401),  but  insisted  that  the 
following  propositions  showed  that  judgment  on  the  demurrer 
must  be  for  defendant,  without  touching  the  general  question. 
1.  Every  judgment  of  another  state  is  not  conclusive  evidence 
of  a  debt.  Some  are ;  some  are  not.  See  Holkar  case,  and  Penn. 
399.  2.  If  the  judgment  be  only  prima  facie  evidence  of  the 
debt,  nil  debet  is  a  good  plea.  If  it  is  conclusive,  then  nul  tiel 
record  is  the  right  plea.  3.  Every  pleading  is  to  be  taken  most 
strongly  against  him  who  makes  it.  5  Bac.  322.  4.  There  is 
nothing  in  the  declaration  to  show  that  this  is  a  conclusive  judg- 
ment ;  that  there  was  process,  service,  trial,  verdict  &c.  The 
court  must,  therefore,  presume  that  it  is  prima  facie  evidence  of 
debt  only,  and,  therefore,  nil  debet  is  a  good  plea.  Whether 
such  conclusive  judgment  will  be  produced  at  the  trial,  won  con- 
stat.  In  the  case  in  Peters  74,  nil  debet  was  pleaded,  a  conclu- 
sive judgment  was  given  in  evidence,  and  the  court  so  charged 
the  jury.  So,  7  Cra.  484;  1  Mass.  401. 

Chetwood.  The  cases  where  judgments  are  not  considered 
conclusive  are  in  rem ;  this  is  slander,  and,  if  by  default,  still 
conclusive.  Besides,  defendant  does  show  by  his  plea  and  notice 
that  there  was  process  and  trial,  and  the  record  which  is  referred 
to  and  made  part  of  the  declaration,  also  shows  the  same. 

KtRKPATRICK,  C.  J. 

This  is  an  action  of  debt  upon  a  judgment  entered  in  the 
supreme  court  of  the  state  of  New  York. 

The  defendant  pleads,  first,  nul  tiel  record,  upon  which  issue  is 
joined ;  and  secondly,  nil  debet,  giving  notice  of  the  particulars 
to  be  given  in  evidence  upon  the  trial ;  which  particulars  go  to 
show  that  the  judgment  was  obtained  partly  by  the  fraud  of  the 
plaintiff  and  partly  by  the  oppression  and  injustice  of  the  court, 
*779  58 


914  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Rose  v.  Parker. 


and  not  upon  the  truth  and  justice  of  the  case.     And  to  this 
last  plea  there  is  a  demurrer  and  a  joinder  in  demurrer. 

The  question  presented  by  these  pleadings  has  been  considered 
and  settled  in  this  court  some  terms  ago  in  the  case  of  Olden  v. 
Hattet;  and  since  that  time,  in  the  same  way,  in  the  supreme 
court  of  the  United  States,  in  the  case  of  Hampton  v.  *M'Connel. 
This  last  is  conclusive,  for,  being  a  constitutional  question,  it 
belongs  to  that  court  to  settle  the  law,  and,  having  settled  it,  we 
are  bound  by  the  decision ;  we  have  no  further  discretion  upon 
it.  The  plea,  therefore,  must  be  overruled,  and  there  must  be 
judgment  for  the  plaintiff. 

SOUTHARD,  J. 

I  concur  in  the  opinion  of  the  court,  but  I  do  it  under  the 
irresistible  weight  of  authority  alone.  My  judgment  is  not 
satisfied. 

Judgment  for  plaintiff. 


JOHN  ROSE  v.  HANNAH  PARKER. 

1.  Suit  on  contract  to  dig  well  for  $80.  (a) 

2.  Refusal  to  nonsuit  assigned  for  error.  (6) 


In  case. 

Writ  of  error  to  the  common  pleas  of  Cumberland. 

(a)  See  Richardson  v.  Lanning,  2  Dutch.  ISO  ;  Bruen  v.  Ogden,  S  Harr.  124; 
Cook  ads.  Linn,  4  Harr.  11 ;  Perrine  v.  Hankinson,  6  Hal.  181 ;  The  Church  v. 
Gordon,  2  Vr.  264. 

(b)  White  v.  Potter,  Cbxe  159  ;  The  Associates  &c.  v.  Halsey,  ante  750 ;  Den, 
Hoover  v.  Franklin,  post  850  ;  Haight  v.  Morris,  2  Hal.  289  ;  Bacon  v.  Sheppard, 
6  Hal.  202;  Oampfield  v.  Ely,  1  Or.  150;  Cbxe  v.  Field,  1  Or.  216;  Barlow  v. 
Brands,  S  Or.  248 ;  Perth  Amboy  Manf.  Co.  v.  Condit,  I  Zab.  659;  Den,  Ruther- 
ford v.  Fen,  1  Zab.  702,  per  Carpenter,  J. ;  Mershon  v.  Hobensack,  2  Zab.  372, 

3  Zab.  580;  Den,  Elle  v.  Young,  4  Zab.  775;  Catoir  v.  American  Life  Ins.  Co., 

4  Vr.  488;  Voorhees  v.  Woodhull,  4  Vr.  482;  see,  also,  Central  R.  R.  v.  Moore, 
4  Zab.  836,  per  Elmer,  J. ;  Dare  v.  Ogden,  Coxe  91. 

*780 


2  SOUTH.]          FEBRUARY  TERM,  1820.  915 


Rose  r.  Parker. 


Crane,  attorney  of  plaintiff. 
Jeffers,  attorney  for  defendant. 

The  first  count  in  the  declaration  complains  that  whereas  H. 
Parker  had  retained  and  employed  Rose  to  dig  a  well  for  $80, 
he  undertook  and  promised  that  he  would  dig  and  make  it  with 
good  and  proper  materials,  and  in  a  sound,  substantial  and  work- 
manlike manner ;  and  although  he  did  dig  the  well,  yet  he  did 
not  dig  and  make  it  in  a  sound,  substantial  and  workmanlike 
manner,  but  in  a  slight,  weak,  inartificial  and  unworkmanlike 
manner,  contrary  to  his  promise  and  undertaking.  The  second 
is  on  a  warranty,  and  it  was  not  pretended  to  support  it  at  the 
trial. 

After  the  evidence  of  the  plaintiff  was  closed,  the  defendant 
moved  for  a  non-suit,  which  was  not  granted,  whereupon  a  bill 
•of  exceptions  was  tendered  and  sealed. 

Jeffers,  for  plaintiff  in  error,  urged  that  the  declaration  ought 
to  have  given  notice  of  the  points  in  which  the  defendant  had 
failed ;  whereas,  it  merely  states  the  special  agreement,  with  the 
general  and  common  breach.  1  Chit.  322 ;  Com.  Dig.  "Pleading" 
C  73,  74.  The  plaintiff  ought  to  have  given  notice  of  the  failure, 
with  a  request  that  defendant  should  repair  it.  1  Sep.  250. 
Where  a  request  is  necessary,  it  must  be  a  special  personal  re- 
quest, at  the  proper  time  and  place,  which  is  matter  of  substance, 
not  aided  by  verdict.  1  Saun.  32  note  2. 

*The  special  contract  was  to  make  a  well  for  $80.  A  special 
agreement  must  be  proved  as  laid.  Here  it  was  not  proved  at 
all.  There  was  no  evidence  of  any  agreement.  Bull.  45,  H&  '  i 
Ld.  Ray.  735. 

Ewing,  in  anewer.  The  agreement  was  implied,  not  express, 
to  do  it  in  a  particular  way,  but  the  law  is  the  same,  whether  the 
contract  is  express  or  implied.  The  complaint  is  that  defendant 
undertook  to  dig  a  well  in  a  workmanlike  manner,  and  that  it  is 
not  so  done.  No  notice,  therefore,  necessary ;  it  need  only  be 

*781 


916  NEW  JERSEY  SUPREME  COURT.     [5 


Rose  v.  Parker. 


given  where  the  plaintiff  is  bound  to  do  some  act  previous  to  or 
necessary  to  the  act  of  the  defendant.  So  are  all  the  cases  cited. 
A  refusal  of  a  court  to  nonsuit  is  not  a  ground  of  reversal  on 
error.  This  is  well  settled  in  Pennsylvania  and  the  supreme- 
court  of  the  United  States.  If  the  defendant  intended  any  ad- 
vantage from  the  position  he  took,  he  should  have  required  a 
charge,  which  he  did  not  do.  But  it  would  not  have  helped 
him.  The  declaration  is  right  in  form,  as  upon  an  implied  con- 
tract; and  it  was  not  necessary  to  support  it  by  proving  an, 
express  contract.  There  is  evidence  that  the  defendant  undertook 
to  dig  the  well,  and  that  he  received  the  compensation,  which  ia 
sufficient. 

Jeffers.  The  distinction  is  that  where  the  'declaration  lays  a 
specific  agreement  for  a  specific  sum,  it  must  be  so  proved.  The 
defendant  is  not  a  well-digger  by  profession,  and  is  not  to  answer 
on  an  implied  engagement  because  the  work  was  inartificial  ly 
done. 

KIRKPATRICK,  C.  J. 

This  is  an  action  on  the  case,  and  the  declaration  contains  two- 
counts,  not,  indeed,  very  artificially,  but,  I  believe,  intelligibly 
drawn.  The  first  charges  that  the  defendant,  in  consideration 
of  $80  paid  to  him,  undertook  to  dig  a  well  for  the  plaintiff,  and 
to  finish  it  with  good  and  proper  materials,  and  in  a  sound,  sub- 
stantial and  workmanlike  manner ;  and  the  second  charges  that 
the  defendant,  in  consideration  of  $80  paid  to  him,  undertook  to- 
warrant,  and  did  warrant,  that  a  certain  well  which  he  had  dug 
for  the  plaintiff  should  not  fail  in  water  for  one  year ;  both  of 
which  undertakings  he  had  failed  to  perform. 

*The  proof  is,  in  substance,  that  the  defendant  did  receive  from 
the  plaintiff  $80  for  digging  a  well,  and  that  he  did  dig  one  for 
her  accordingly,  but  that  he  neither  dug  it  so  deep  as  the  wella 
in  the  neighborhood  nor  finished  it  with  good  and  proper  mate- 
rials, nor  in  a  sound  and  workmanlike  manner,  and  that  it  did 
in  consequence  thereof  fail  in  water,  within  one  year,  and  that 
the  plaintiff  was  obliged  to  get  another  dug. 

*782 


SOUTH.];          FEBRUARY  TERM,  1820.  917 


KM  i- 11  v.  Vanderveer. 


The  defendant  objects  to  this  prqpf  because  it  does  not  establish 
what  he  calls  the  special  contract,  either  in  the  first  or  second 
count,  and  because  the  court  would  not  overrule  it  he  takes  his 
bill  of  exception,  which  is  brought  up  here  with  the  record.  But 
this  objection,  I  believe,  cannot  prevail.  The  evidence  is  suffi- 
cient to  enable  the  jury  to  draw  these  conclusions,  to  wit,  that 
the  defendant  received  a  full  price  for  the  digging  and  finishing 
of  a  well  in  the  manner  set  forth  in  the  declaration,  and  that  he 
did  not  do  so.  Now,  he  who  undertakes  to  do  a  piece  of  work 
for  a  sound  price,  paid  in  lump,  undertakes  to  do  it  in  a  complete 
^nd  workmanlike  manner.  This  the  law  presumes,  and,  there- 
fore, will  raise  the  assumption  upon  the  receipt  of  the  money. 
Whether,  in  this  case,  the  well  was  so  dug  and  finished  by  the 
-defendant,  was  a  question  for  the  jury  upon  the  whole  evidence. 
And  if  I  were  to  say  my  own  opinion  upon  it,  I  should  say  they 
had  decided  it  very  justly.  The  verdict,  therefore,  I  think,  un- 
doubtedly, is  good  upon  the  first  count. 

Let  the  judgment  be  affirmed. 


DANIEL  E.  ESTELL  v.  DAVID  VANDERVEER. 

1.  Count,  on  note  dated  6th  of  December,  payable  in  ten  days,  and  payment 
•demanded  1st  of  January,  is  faulty. 

2.  Demand  not  made  till  January,  due  diligence  is  not  used,  (a) 

3.  Court  must  instruct  jury  in  the  law.  (6) 

In  case. 

This  cause  came  before  the  court  on  a  writ  of  error  to  the  corn- 
to)  What  is  proof  of  due  diligence,  Ferru  v.  Saxlon,  1  South.  1 ;  Stout  v. 
^Stevenson,  1  South.  182  (a) ;   Kibble  v.  Jefferson,  5  Hal.  139;    Winant  v.  Davit,  S 
Harr.  £76  ;  Perry  v.  Green,  4  HOST.  61 ;  Shipman  v.  Cook,  1  C.  E.  Or.  £51.     In- 
solvency of  maker  does  not  excuse  demand   and  notice,  Snyder  v.  Findlry, 
Coze  78  ;  Oliver  v.  Afunday,  Penn.  *98£  ;  see  Sanderton  v.  Crane,  *  Or.  506. 
(6)  Broudwell  v.  Nixon,  1  South.  36S  (6). 


918  NEW  JERSEY  SUPREME  COURT.     [5 


Estell  v.  Vanderveer. 


mon  pleas  of  Burlington,  which  brought  up  three  bills  of  excep- 
tions. The  first,  then,  because  the  court  did  not  nonsuit  the 
plaintiff.  The  second,  because  the  court  did  not  charge  as 
defendant  requested.  The  third,  because  the  court  would  not 
charge  at  all,  when  requested.  The  suit  was  commenced  on  the 
6th  of  April,  1814. 

Ewlng,  attorney  of  plaintiff  in  error. 
Need,  attorney  of  defendant. 

*The  declaration  sets  out  that  S.  W.  Blackwood,  on  the  6th 
of  December,  1813,  made  a  note  to  Estell  to  pay  him,  or  order, 
ten  days  after  date,  $111.49  ;  that  Estell  endorsed  it,  on  the  same 
day,  to  Vanderveer,  of  which  endorsement  Blackwood  had  notice 
on  the  same  day,  and  avers  that  after  ten  days,  viz.,  on  the  1st 
of  January,  1814,  he  presented  the  note  to  Blackwood  for  pay- 
ment, but  he  refused,  of  which  Estell  the  same  day  had  notice. 

The  second  count  of  the  declaration  is  for  $111.49,  for  money 
had  and  received ;  damages  laid  at  $300.  There  was  verdict  and 
judgment  for  $136.17. 

The  note  was  read  to  the  jury,  without  objection,  in  the  fol- 
lowing words :  "  Evesham,  6  Dec.,  1813.  Ten  days  after  date,. 
I  promise  to  pay  the  order  of  Daniel  E.  Estell,  one  hundred  and 
eleven  dollars  forty-nine  cents,  without  defalcation,  value  re- 
ceived. Samuel  W.  Blackwood."  Endorsed,  "  Pay  the  within 
note  to  David  Vanderveer.  Daniel  E.  Estell."  After  which 
Blackwood  was  sworn,  and  testified  that  he  gave  the  note  for 
money  due  to  Estell,  and  had  never  paid  it.  He  became  embar- 
rassed in  1814,  and  could  not  pay  his  debts,  or  this  note,  at  the 
middle  of  March  in  that  year.  He  had  been  a  merchant,  and 
sold  his  store  in  December,  1813,  and  paid  some  debts  after  that 
time,  and  held  out  to  his  creditors  that  he  could  pay ;  and  it  was 
not  known  to  them  or  the  public  that  he  could  not.  He  was- 
not  insolvent  when  the  note  became  due,  but  was  afterwards  put 
in  confinement  upon  a  suit  on  it,  and  took  the  benefit  of  the  in- 
solvent laws  in  May,  1815.  After  it  became  due  Estell  asked 

*783 


2  SOUTH.]  FEBRUARY  TERM,  1820.  919 


Estell  r.  Vanderveer. 


him  for  the  money,  and  said  he  had  the  note,  but  did  not  show 
it ;  he  expected  to  collect  some  outstanding  debts,  and  promised 
to  pay  Estell  about  the  25th  of  March.  Soon  after  this  Vander- 
veer  wrote  to  him  that  he  had  the  note,  and  in  the  latter  part  of 
January,  1814,  Vanderveer  demanded  payment.  As  much  as 
twenty  days  after  this  he  called  on  Estell,  told  him  he  was  unable 
to  pay,  and  asked  for  time  to  pay,  and  Estell  said  he  had  no 
doubt  but  Vanderveer  would  wait,  and  made  no  objection  to 
his  waiting.  Estell  lives  in  Philadelphia;  Vanderveer  in  Moores- 
town,  nine  miles  from  Philadelphia ;  Black  wood  in  Evesham, 
four  miles  from  Moorestown  and  twelve  from  Philadelphia. 

After  the  plaintiff  rested  the  defendant  demanded  a  nonsuit, 
which  was  refused.  He  then  prayed  a  charge  that  the  plaintiff 
*had  not  proved  the  exercise  of  due  and  legal  diligence,  and  that 
the  evidence  was  not  sufficient  to  authorize  a  recovery ;  which 
charge  the  court  refused  to  give.  He  then  prayed  a  charge  as 
the  court  apprehended  the  law  to  be,  which  was  refused.  These 
several  opinions  of  the  court,  and  the  alleged  defects  of  the  dec- 
laration were  the  reasons  assigned  for  the  reversal  of  the  judg- 
ment. 

Ewing,  for  plaintiff  in  error.  The  declaration  offers  abundant 
proof  of  error.  Upon  that,  plaintiff  has  no  right  to  recover. 
The  action  is  by  endorsee  against  endorser.  The  note  is  dated 
December  6th,  1813,  payable  in  ten  days  It  became  due  the 
16th  and  19th.  It  was  presented  for  payment  on  the  1st  of 
January,  eleven  days  after  the  day  of  payment.  Plaintiff  has, 
therefore,  shown,  on  his  declaration,  a  gross  and  fatal  neglect, 
and  that  he  had  no  right  to  recover.  Penn.  916.  2.  The  decla- 
ration is  radically  defective  because  it  does  not  state  a  promise 
by  endorser  to  pay  after  demand  on  the  maker,  and  notice  to  the 
endorser ;  that  is,  after  his  liability  arose.  3.  The  bills  of  ex- 
ception furnish  matter  for  reversal.  Due  diligence  is  not  proved. 
The  demand,  if  it  may  be  called  a  demand,  was  not  in  season ; 
it  was  the  latter  part  of  January,  though  the  note  became  due 
the  19th  of  December,  and  they  reside  near  each  other.  The 
holder  gave  time,  to  which  the  endorser  did  not  assent,  and  no 

*784 


920  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Estell  v.  Vanderveer. 


notice  was  ever  given  to  Estell  by  Vanderveer,  to  endorser  by 
the  holder.  4.  These  points  are  questions  of  law,  on  which  the 
court  refused  to  express  the  opinions  requested.  5.  They  also 
icfused  to  express  any  opinion. 

M'llvaine,  in  answer.  This  case  depends  on  facts  and  prin- 
ciples not  found  in  Ferns  v.  Saxton,  or  any  other  case.  1. 
The  drawer  was  insolvent  and  unable  to  pay  his  debts  when  he 
drew  the  note.  2.  The  payee  did  not  call  on  him  until  some 
time  after  it  was  due.  3.  It  was  endorsed  after  it  was  due,  and 
dishonored  in  defendant's  hands  by  refusal  of  payment.  4.  No 
precise  dates  are  proved,  but  it  is  manifest  that  the  note  was  not 
endorsed,  the  demand  made  or  notice  given  until  January.  The 
want  of  precision  in  the  dates  makes  it  the  province  of  the  jury, 
not  the  court,  to  decide. 

Under  these  facts  it  was  not  necessary  to  give  notice  to  Estell. 
The  effect  and  object  of  notice  is  to  warn  the  endorser,  but  the 
note  was  dishonored  in  his  hands,  and,  therefore,  no  warning 
*neeessary.  There  are  cases  requiring  notice  where  the  endorse- 
ment was  after  it  was  due,  but  none  after  it  was  dishonored  by 
refusal  of  payment.  Esp.  84,  102;  1  Bay  331;  1  Yeates  361, 
362,  363.  Again :  There  was  some  proof  of  notice  from  Van- 
derveer to  Estell.  What  took  place  between  Estell  and  Black- 
wood  in  January  shows  that  Estell  had  seen  and  conversed  with 
Vanderveer.  Of  this  evidence  the  jury  are  to  judge.  2  Johns. 
Gas.  337 ;  South.  19;  2  Amer.  Dig.  19.  Again:  Party  entitled 
to  notice  may  waive  it,  or  accept  a  different  notice,  and  the  con  - 
duct  of  Estell  shows  that  he  did  this.  On  this,  too,  the  jury  is 
to  pass.  Chit.  252,  253. 

Upon  the  declaration  it  may  be  remarked — 1.  That  the  note 
was  assigned  in  January,  and,  therefore,  it  is  in  consonance  with 
the  fact,  and  the  jury  were  to  determine  whether,  under  that  fact, 
there  was  a  right  of  recovery.  2.  The  date  is  altogether  im- 
material. Chit.  366,  535;  Esp.  268;  Doug.  514.;  2  Johns. 
Cos.  52. 

To  the  objection  that  the  declaration  does  not  state  a  demand 
and  promise  to  pay  after  the  liability  arose  it  is  answered — 1. 

*785 


2  SOUTH.]  FEBRUARY  TERM,  1820.  921 


Estell  v.  Vanderveer. 


It  contains  a  count  for  money  had  &c.,  and  the  action  may  be 
sustained  on  its  Plead.  Ass.  23,  2J. ;  Chit.  374,  376,  379.  2. 
This  defect  is  cured  by  the  verdict.  1  Saund.  226,  228. 

As  to  the  refusal  to  charge.  It  is  denied  that  there  is  any 
case  in  England  or  this  country  where  such  refusal  is  established 
ground  of  error.  South.  125.  Nor  in  our  judiciary  establish- 
ments is  it  expedient  that  there  should  be.  Besides,  in  over- 
ruling the  nonsuit  the  court  had  expressed  its  opinions  and  was 
not  bound  to  do  it  again. 

Ewing,  in  reply.  This  case  is  supposed  to  form  an  exception 
to  the  doctrine  of  diligence,  which  is  admitted  by  defendant's 
counsel  in  its  fullest  extent.  The  grounds  of  the  exception 
claimed  are  to  be  examined.  1.  As  to  the  insolvency  of  the 
drawer.  The  law  is  directly  the  reverse  of  what  is  laid  down. 
Demand  on  an  insolvent  drawer  is  necessary.  See  Perm.  982 ; 
Chit.  225.  Besides,  this  fact,  if  relied  on,  should  have  been 
unequivocally  proved,  whereas  it  is  not  proved ;  it  is  left  in 
<loubt.  Blackwood  paid  some  debts  in  January,  and  might,  per- 
haps, have  paid  this  if  demanded.  Under  the  circumstances,  if 
the  law  was  as  defendant  says  it  is,  the  court  ought  to  have 
charged  in  reference  to  this  fact.  2.  It  is  said  that  the  note  was 
endorsed  after  it  was  *due,  and  therefore  the  law  requires  no 
diligence  to  charge  the  endorser.  There  are  several  replies  to 
this.  1.  If  true,  defendant  cannot  avail  himself  of  it.  He  has 
declared  on  a  note  endorsed  before  due ;  he  cannot  support  his 
declaration  by  a  note  endorsed  after  due.  But  if  such  were 
proved,  he  should  have  been  nonsuited,  or  the  jury  charged  to 
find  for  the  defendant.  There  is  a  solitary  case  in  1  Campb.  139, 
which  seems  to  support  the  idea  contended  for  by  the  defendant 
in  error.  But  it  is  a  nisi  priust  dictum  merely,  and  is  so  incon- 
sistent with  principle  as  not  to  be  worthy  of  regard.  If  the  posi- 
tion be  correct,  then  the  difference  is  most  substantial.  If  the 
note  be  endorsed  before  due,  you  must  use  due  diligence ;  if  after 
due,  no  diligence.  2.  There  is  no  proof  that  the  endorsement 
was  made  after  due.  It  is  without  date,  and  therefore  the  law 
presumes  it  was  at  the  date  of  the  note.  And  there  is  nothing 

*786 


922  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Estell  v.  Vanderveer. 


to  rebut  this  presumption.  At  the  worst,  it  is  but  doubtful. 
That  Estell  called  on  and  asked  Blackwood  for  the  money  is 
consistent  with  an  endorsement  before  it  was  due.  3.  The  law 
is  not  that  a  note  endorsed  after  due  requires  no  diligence.  No- 
case  in  the  English  books  has  so  decided.  Even  in  the  case  in 
Campbell  an  excuse  for  the  want  of  notice  is  given.  The  general 
expressions  gathered  from  the  books  by  the  adverse  counsel  do 
not  support  his  doctrine.  What  if  the  endorsee  takes  the  bill  on 
the  credit  of  the  endorser  ?  Does  this  absolve  him  from  looking 
to  the  drawer?  Such  an  endorsement  is  a  bill  drawn  on  the 
maker;  and  if  so,  diligence  must  be  used.  Such  bills  are,  in 
fact,  generally  taken  on  the  credit  of  the  drawer.  The  cases  re- 
lied on  are  neither  of  them  sufficient  for  the  purpose.  1  Bay 
331  is  of  no  authority  and  is  decided  on  its  peculiar  circum- 
stances, and  1  Yeates  361  is  not  in  point,  while  in  New  York 
the  law  has  been  settled  directly  the  contrary.  9  Johns.  121. 

3.  But  if  the  law  did  absolve  the  endorsee  from  diligence, 
still  he  could  not  recover.  He  gave  a  credit  to  the  drawer  to  the 
25th  of  March,  and  before  that  credit  expired  he  became  avowedly 
insolvent.  Now,  when  the  holder  gives  credit  or  time  to  the 
drawer  he  discharges  the  endorser. 

As  to  the  idea  that  Estell  waived  notice,  there  is  no  evidence. 
And  if  there  were,  still,  with  such  waiver,  promise  to  pay  must 
be  proved.  On  all  the  points  the  charge  of  the  court  was 
necessary. 

*The  declaration  itself  must  stand  without  the  aid  of  the  case, 
and  it  is  faulty  on  the  face  of  it.  If  there  were  circumstances  of 
excuse  for  the  want  of  diligence,  they  should  have  been  stated 
and  put  in  issue.  The  money  count  alone,  as  between  endorsee 
and  endorser,  never  can  be  supported ;  but  if  it  could,  this  count 
is  for  $111.49,  the  verdict  for  $136,  which  is  fatal. 

KlRKPATRICK,  C.  J. 

This  is  an  action  by  the  endorsee  against  the  endorser  of  a 
promissory  note.  The  plaintiff,  in  his  declaration,  sets  forth 
that  one  Blackwood  made  the  note  in  question  to  the  defendant, 
Estell,  dated  December  6th,  1813,  payable  in  ten  days  after 

*787 


2  SOUTH.]  FEBRUARY  TERM,  1820.  923 


Eetell  r.  Vanderveer. 


date,  for  $111.49;  and  that  before  the  day  of  payment,  to  wit, 
on  the  day  of  the  date  thereof,  Estell  endorsed  it  to  him.  And 
he  then  expressly  avers  that  after  the  end  and  expiration  of  the 
ten  days  appointed  for  the  payment  thereof,  to  wit,  on  the  1st  of 
January,  1814,  he  presented  it  to  Blackwett  for  payment,  which 
was  refused. 

The  plaintiff  cannot  maintain  his  judgment  upon  this  declara-r 
tion.  He  has  set  forth  in  his  declaration  that  the  note  was 
endorsed  on  the  day  of  its  date,  and,  having  done  so,  it  was 
essential  that  he  should  have  gone  further ;  that  he  should  have 
set  forth,  also,  and  likewise  proved,  at  the  trial,  that  he  had  de- 
manded payment  of  the  maker  when  it  became  due ;  that  the 
same  had  been  refused,  and  that  he  had  given  notice  of  such 
demand  and  refusal  to  the  endorser.  Instead  of  that,  he  ex- 
pressly declares  he  did  not  present  the  note  for  payment  till 
January  1st,  1814,  ten  days  after  its  maturity;  nor  does  he 
allege  that  even  then  he  gave  notice  of  such  demand  and  refusal 
to  the  defendant. 

He  would  have  excused  himself  at  the  trial  from  this  neces- 
sity by  alleging,  contrary  to  his  declaration,  that  the  note  was 
really  and  in  truth  endorsed,  not  on  the  day  of  its  date  but  after 
it  became  due,  and  that,  therefore,  he  could  not  make  such  de- 
mand and  give  such  notice.  The  court  below  permitted  him  to 
give  evidence  of  this  fact,  and  there  was  a  bill  of  exception  taken, 
which  is  one  of  the  grounds  assigned  for  error  here. 

It  was  certainly  a  mistake  to  permit  the  plaintiff  to  prove  a 
train  of  facts  directly  in  the  face  of  his  own  declaration.  This 
was  the  very  pivot  upon  which  his  right  of  action  turned ;  and  to 
suffer  him  to  set  forth  one  thing  in  his  declaration,  and  to  prove 
directly  the  reverse  at  the  trial,  would  be  breaking  down  the 
*whole  theory  of  pleading ;  it  would  be  taking  the  defendant 
unaware,  unapprised  of  the  complaint  against  him,  and  of  course 
unprepared  to  meet  it. 

Both  because  the  declaration  does  not  contain  a  lawful  cause 
of  action,  therefore,  and  because  the  court  admitted  unlawful 
evidence — 

Let  the  judgment  be  reversed. 
*788 


924  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Inhabitants  of  Northampton  v.  Woodward. 


THE  INHABITANTS  OF  THE  TOWNSHIP  OF  NORTHAMPTON, 
COUNTY  OF  BURLINGTON,  v.  BARZILLAI  WOODWARD,  SOLO- 
MON GASKILL,  and  others ;  AARON  HARKER,  prosecutor. 

Where  judgment  has  been  entered  on  constable's  bond,  and  the  execution 
satisfied,  it  will  not  hold  and  bind  the  property  so  as  to  give  subsequent  exe- 
cutions on  the  same  bond,  a  preference  over  another  execution,  delivered  to 
the  sheriff  before  them. 


In  debt. 

This  case  was  brought  up  by  agreement  and  submitted  with- 
out argument.  There  was  a  prosecution  upon  a  constable's 
bond  in  the  penalty  of  $10,000,  and  judgment  entered  upon  it 
in  August,  1815,  and  execution  issued  and  the  money  made, 
amounting  to  $51.78.  One  of  the  defendants  only,  Solomon 
Oaskill,  was  solvent ;  and  the  money  to  be  made  either  upon 
this  or  any  other  action,  out  of  that  bond,  must  come  from  his 
property. 

In  November,  1815,  rules  were  entered  in  favor  of  two  other 
creditors  to  show  cause  why  the  damages  they  had  sustained 
should  not  be  assessed  and  levied  under  the  former  judgment ; 
and  on  the  13th  of  February,  1816,  those  plaintiffs  had  their 
•damages  assessed,  and  judgments  and  executions  which  were 
put  into  the  sheriff's  hands  and  were  levied  on  Solomon  Gaskill's 
property.  In  the  meantime,  however,  between  the  date  of  the 
rules  and  the  date  of  the  judgments,  viz.,  on  the  24th  of  Jan- 
uary, 1816,  a  judgment  upon  bond  and  warrant  for  $1,900,  in 
favor  of  Sarah  Gaskill  against  Solomon  Gaskill  was  entered, 
and  execution  put  into  the  sheriff's  hands  on  the  3d  of  Feb- 
ruary, and  levy  made.  And  the  question  raised  was,  Which  exe- 
cution was  to  be  first  satisfied  ? 

No  exception  was  taken  to  the  form,  the  substance,  the  fair- 
ness or  honesty  of  any  of  the  judgments.  It  was  a  question  of 
preference  among  honest  creditors. 


2  SOUTH.]          FEBRUARY  TERM,  1820.  925 

Inhabitants  of  Northampton  t.  Woodward. 

*KlRKPATRICK,  C.  J. 

This  is  a  case  arising  in  the  common  pleas  of  Burlington 
county.  It  is  brought  up  here  by  the  consent  of  the  parties 
without  writ  of  error,  and  submitted  to  the  consideration  of  the 
court  without  argument. 

This  is  a  mode  of  proceeding  altogether  extra-judicial  and 
contrary  to  the  course  of  the  common  law.  If  we  should  enter 
into  the  consideration  of  the  case  all  that  we  can  say  upon  it  will 
be  merely  advisory  ;  we  can  pronounce  no  judgment,  we  can  issue 
no  execution,  we  can  render  to  none  of  these  parties  their  respec- 
tive rights,  the  court  below  may  tell  us  they  are  obliged  to  us 
for  our  advice  but  that  we  are  mistaken  in  the  law,  and  that, 
therefore,  they  cannot  be  governed  by  such  advice,  (a) 

I  think,  therefore,  that  as  a  general  course  of  practice  it  would 
be  improper  for  the  court  to  express  any  opinion  upon  cases  pre- 
sented in  this  way. 

But,  as  in  this  particular  case,  the  parties  seem  not  to  have 
been  aware  of  this  difficulty,  and  as  the  opinion  of  the  court, 
however  informally  rendered,  may  save  them  from  further  trouble 
and  expense  I  have  no  objection  to  look  into  it. 

The  case  arises  upon  the  prosecution  of  what  is  commonly 
called  a  constable's  bond. 

In  August  term,  1815,  there  was  a  judgment  by  default  and 
an  assessment  of  damages  by  the  court  for  the  prosecutor,  Har- 
ker,  for  $30.83,  with  costs.  Upon  this  judgment  execution  was 
sued  out  and  delivered  to  the  sheriff  September  26th,  1815,  com- 
manding him  to  make  the  whole  penalty  of  the  bond,  being 
$10,000,  but  endorsed  for  the  damages  and  costs  only.  This 
execution  was  afterwards  satisfied. 

In  November  term,  1815,  John  A.  Johnson  and  Samuel 
Reeves  suggested  further  breaches  of  the  condition  of  this  cond, 
and  obtained  rules-  upon  the  defendants  to  show  cause  why 
then?  damages  should  not  be  assessed  at  the  then  next  term  and 
executions  go  thereupon. 

(a)  Consent  cannot  give  jurisdiction,  Falkenbwrgh  v.  Cramer,  Ooxt  SI; 
Parker  v.  Munday,  Ooze  70;  Mittm  v.  Smock,  Perm  *911 ;  OottreU  ads.  Thomp- 
«on,  S  Or.  S44. 

*789 


926  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Inhabitants  of  Northampton  v.  Woodward. 

On  the  24th  of  January,  1816,  one  Huldah  Gaskill  entered 
up  a  judgment  upon  a  bond  and  warrant  of  attorney  against  the 
defendant,  Solomon  Gaskill,  for  $950,  with  costs,  upon  which  an 
execution  was  taken  out  and  delivered  to  the  sheriff  on  the  5th 
of  September,  1816,  and  was  afterwards  returned  levied  upon  all 
the  defendant's  property,  subject  to  prior  encumbrances  &c. 

On  the  13th  of  February,  1816,  Johnson  and  Reeves  obtained 
*their  assessments  made  by  the  court  and  took  out  their  execu- 
tions thereupon,  which  were  afterwards  levied  upon  the  same 
property  of  Solomon  Gaskill,  the  other  defendants  having  nothing 
<fcc.  The  like  proceedings  were  afterwards  had  in  favor  of  one 
Borden,  whose  execution  also  was  levied  in  like  manner. 

The  court,  upon  the  sale  of  the  property,  ordered  the  sheriff  to 
bring  the  money  into  court  to  wait  their  order.  And  the  ques- 
tion is  as  to  the  priority  of  these  executions. 

The  action  is  in  debt  upon  a  bond  with  a  special  condition, 
the  judgment  is  by  default  and  damages  assessed  for  the  prosecu- 
tor ;  other  breaches  are  afterwards  suggested  by  other  persons 
and  damages  assessed  thereupon  by  the  court,  on  motion  only, 
without  scire  facias  and  without  the  intervention  of  a  jury.  I 
cannot  find  any  statute  authorizing  this  proceeding  at  the  time 
of  this  transaction,  and  if  not  so  authorized  the  executions  issued 
upon  such  assessments  certainly  cannot  be  maintained,  and  much 
less  preferred  to  those  which  are  lawful  and  right.  The  damages 
were  assessed  upon  these  breaches  February  13th,  1816,  and  the 
first  act  that  I  can  find,  authorizing  such  assessment,  was  passed 
on  the  16th  of  February,  1816.  The  legislature,  indeed,  by 
that  act,  have  thought  proper  to  take  away  from  the  citizen  the 
trial  by  jury,  but  even  if  this  should  be  submitted  to,  yet,  if  it 
was  subsequent  to  the  transaction,  it  cannot  support  it. 

Perhaps,  however,  this  objection  may  be  removed  out  of  the 
way,  for  I  must  confess  that  I  have  not  been  able  to  collect  all 
the  acts  of  assembly,  dispersed  as  they  are  in  loose  pamphlets, 
and  if  removed,  then  I  think  there  can  be  no  doubt  as  to  the 
priority.  The  first  execution  delivered  to  the  sheriff  mifst  pre- 
vail. The  first  judgment,  indeed,  ties  up  the  hands  of  the 
debtor  so  that  he  can  neither  sell  nor  encumber  the  land,  but  as 

*790 


2  SOUTH.]          FEBRUARY  TERM,  1820.  027 

Inhabitants  of  Northampton  i .  Woodward. 

to  creditors  pursuing  their  rights  they  ais  to  be  preferred  accord- 
ing to  their  diligence. 

The  act  of  assembly  declares  that  an  execution  shall  bind  goods 
but  from  the  time  of  its  delivery  to  the  sheriff ;  and  if  two  or 
more  be  delivered  on  the  same  day,  that  which  was  first  delivered 
shall  be  first  satisfied ;  and  it  further  declares  that  when  there 
are  executions  against  both  goods  and  lands  the  priority  and 
preference  shall  be  given  as  on  executions  against  goods  only ; 
and  that  all  disputes  respecting  the  same  shall  be  adjudged  and 
determined  accordingly. 

*That  the  prosecutor,  Harker,  took  out  execution  for  the  whole 
penalty  cannot  help  those  who  came  in  afterwards.  In  the  first 
place,  it  was  irregular  to  do  so ;  his  execution  ought  to  have 
recited  both  the  judgment  by  default  and  the  assessment,  and  the 
mandatory  part  of  it  ought  to  have  regarded  the  assessment  only. 
But  even  if  it  had  not  been  liable  to  this  exception,  the  act  of 
assembly  upon  that  subject  expressly  declares  that  when  the  sum 
so  assessed  is  made  and  satisfied  upon  such  execution  the  lands 
of  the  defendant  shall  be  forthwith  discharged  therefrom,  though 
the  judgment  shall  stand  as  security  for  other  breaches,  it  shall 
stand  as  security  ;  that  is,  it  shall  bind  the  lands  against  all  sales 
and  encumbrances  by  the  debtor  himself,  but  not  against  creditors 
who  have  equal  rights,  and  who  gain  a  preference  in  due  course 
of  law  by  placing  their  executions  first  in  the  hands  of  the  sheriff; 

I  am  of  opinion,  therefore,  that  the  execution  of  Huldah  Gaskill 
is  entitled  to  be  preferred  to  those  of  Johnson,  Reeves  and  Borden, 
and  that  they  again  have  preference  according  to  the  time  they 
were  actually  delivered  to  the  sheriff*. 

ROSSELL  and  SOUTHARD,  justices,  concurred  in  the  opinion 
that  Huldah  Gaskill's  execution  was  entitled  to  the  preference, 

*791 


928  NEW  JERSEY  SUPREME  COURT.     [5 


WSllson  v.  Willson. 


THOMAS  WILLSON  v.  JOSEPH  WILLSON. 

I,!  Plea  of  general  issue  relinquished,  and  judgment  confessed,  cure  error  in> 
declaration,  warrant  of  attorney  &c. 

2.  Party  cannot  prosecute  by  two  or  more  attorneys  in  partnership,  (a) 

3.  Auditors  take  account  and  receive  and  refer  issues  to  court. 

4.  The  account  returned  may  be  entered  on  record  or  referred  to  only. 


In  error. 

From  the  return  of  the  writ  of  error  the  following  case  appears  : 
Joseph  Willson,  the  plaintiif  below,  brought  his  action  of  account 
rendered  in  "  Gloucester  inferior  court  of  common  pleas  "  by  writ 
returnable  to  March,  1816. 

The  plaintiff,  by  White  and  Armstrong,  his  attorneys,  counted 
that  whereas  Thomas  Willson,  from  the  1st  day  of  May,  1802, 
until  the  1st  of  December,  1811,  was  owner  of  one  moiety,  and 
bailiff  of  the  said  Joseph,  of  the  other  moiety,  of  a  certain  sloop 
or  vessel  called  the  Two  Brothers,  with  her  tackle,  apparel  and 
furniture,  and,  during  that  time,  had  the  management,  freighting 
and  letting  to  hire  of  said  vessel,  and  receiving  of  all  moneys 
made  or  earned  by  her,  by  freight  or  otherwise,  for  the  advantage 
*and  profit  of  the  said  Joseph  and  Thomas,  to  render  a  reason- 
able account  thereof  when  he  should  be  thereunto  afterwards 
requested,  yet  he  has  refused  to  account  &c. 

The  defendant  pleaded  that  he  never  was  the  bailiff  in  manner 
and  form  &c. 

June  term,  1817.  Defendant  relinquished  his  plea,  and  judg- 
ment was  given  to  account  for  the  time  aforesaid  of  the  moneys 
earned  and  made  by  the  said  Thomas,  and  received  as  bailiff  as 
aforesaid.  And,  by  consent,  David  S.  Basset,  Edmund  Brewer 
and  Aaron  Burrough  assigned  as  auditors  to  take  and  declare  the 
account,  and  the  said  court,  by  consent,  assign  the  said  auditors 
to  meet  at  &c.,  on  &c.,  to  take  the  account  aforesaid. 

(a)  Revised  Statutes  "Practu-e  of  Law,"  "Attorneys"  \  1. 

*792 


2  SOUTH.]  FEBRUARY  TERM,  1820.  929 


Willson  v.  Willuon. 


At  March  term,  1818,  the  following  report  was  made:  "We, 
Edmund  Brewer,  Aaron  Borough  and  David  S.  Basset,  auditors, 
appointed  at  the  inferior  court  of  common  pleas,  in  and  for  the 
county  of  Gloucester,  of  the  term  of  June,  1817,  to  audit  and 
state,  in  account  at  issue,  before  the  said  court,  between  Joseph 
Willson,  the  plaintiff,  and  Thomas  Willson,  the  defendant,  and, 
having  been  duly  sworn  and  affirmed  agreeably  to  law  before 
James  Matlack,  Esq.,  one  of  the  judges  of  said  court,  did  proceed 
to  hear  and  investigate  the  said  matter  in  controversy  between 
the  said  parties,  and,  after  divers  proofs  and  evidences  had  before 
us  in  presence  of  the  parties,  do  agree  to  audit  and  report  the 
following  (stating  an  account  &c.),  which  balance  of  $1,154.46 
we  find  due  from  Thomas  Willson  to  Joseph  Willson,  together 
with  all  legal  taxed  costs ;  and,  further,  do  order  each  party  to 
pay  their  equal  one-half  of  the  expenses  of  the  auditors.  All 
which  is  submitted.  In  testimony  whereof  we  have  hereunto 
set  our  hands  and  seals  this  24th  day  of  February,  in  the  year 
of  our  Lord  1818."  Signed  <fec. 

At  the  same  term  the  following  entry  was  made  in  the  min- 
utes of  the  court : 

"  Joseph  Willson  v.  Thomas  Wittson.  In  account.  The  audi- 
tors, David  S.  Basset,  Edmund  Brewer  and  Aaron  Burrough, 
heretofore  appointed  by  this  court,  by  and  with  the  consent  of 
the  said  Joseph  Willson  and  Thomas  Willson,  to  state  the  ac- 
count of  the  said  Thomas  Willson  of  the  time  &c.,  in  which  &c., 
having  reported  to  this  court  the  said  account,  by  which  it 
appears  there  is  due  to  the  said  Joseph  Willson  the  sum  of 
$1,154.56  :  Ordered,  *on  motion  of  White  and  Armstrong,  attor- 
neys of  plaintiff,  that  the  same  be  filed ;  and,  on  like  motion, 
ordered  that  judgment  thereon  be  entered  for  the  said  Joseph 
Wiilson  against  the  said  Thomas  Willson.  Therefore,  it  is  con- 
sidered that  the  said  Joseph  Willson  do  recover  against  the  said 
Thomas  Willson  the  aforesaid  sum  of  $1,154.56,  by  the  auditors 
aforesaid  reported  to  be  due  and  owing  to  the  said  Joseph  from 
the  said  Thomas,  and  also  $133.13  for  his  damages,  as  well  by 
reason  of  the  interpleading  aforesaid  as  for  his  costs  and  charges 
by  the  said  Joseph  in  and  about  his  suit  in  this  behalf  expended, 
*793  59 


930  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Willson  v.  Willson. 


to  the  said  Joseph  by  the  court  here  adjudged,  with  his  assent. 
And  the  said  Thomas  in  mercy  "  &c. 

Thirty-one  errors  were  assigned  by  Pearson,  attorney  of 
plaintiff.  Those  which  were  relied  upon  for  reversing  the  judg- 
ment will  appear  by  the  remarks  of  the  counsel. 

When  the  argument  was  called,  the  chief-justice  objected  that 
no  judgment  of  the  court  below  had  been  brought ;  and  it  ap- 
peared that  no  record  had  been  made  up,  for  the  return  to  the 
writ  was  a  mere  copy  of  the  entries  in  the  minutes. 

R.  Stockton.     It  is  certified  to  be  a  true  copy  from  the  record. 

The  court  permitted  the  argument  to  proceed,  directing  that 
the  record  should  be  perfected  before  judgment. 

Coxe  and  R.  Stockton  argued  for  plaintiff  in  error. 
Armstrong,  for  defendant. 

For  the  plaintiff  it  was  argued — 1.  The  action  was  not  prose- 
cuted by  the  plaintiff  or  any  attorney  of  the  court.  Pat.  355. 
The  names  White  and  Armstrong  aro  signed .  to  the  writ  and 
declaration.  The  warrant  of  attorney  is  to  John  Moore  White 
and  Robert  L.  Armstrong.  There  is  no  such  attorney  as  White 
and  Armstrong.  Attorneys  are  officers  of  the  court,  and  respon- 
sible for  their  conduct  and  the  management  of  the  cause  to  the 
court  and  party.  Of  such  persons  there  can  be  no  partnership. 
A  partnership  cannot  be  criminally  responsible  and  punished  for 
misconduct. 

2.  The  declaration  is  defective.  1.  It  sets  forth  no  right  of 
the  plaintiff  in  the  vessel  except  by  inference,  which  will  not  do 
in  pleading.  1  Mod.  Ent.  £2,  47;  1  Mod.  Rep.  65.  2.  It 
charges  defendant  both  as  bailiff  and  receiver,  yet  their  liabilities 
are  manifestly  different.  1  Mod.  Ent.  65.  3.  It  does  not  charge 
that  he  had  received  more  than  his  share  of  the  moneys  made 
and  *earned  by  the  vessel.  Wittes  208 ;  1  Wentw.  83.  At  com- 
mon law  there  was  no  action  between  joint  tenants  and  tenants 
in  common.  Our  statute  (Pat.  11$  §  -5)  gives  the  action.  Here, 

*794 


2  SOUTH.]          FEBRUARY  TERM,  1820.  931 


Willson  v.  Willson. 


the  declaration  does  not  follow  the  statute.     The  defendant  is 
not  brought  within  it;     It  is  a  mere  action  at  common  law. 

3.  The  declarations  and  proceedings  do  not  appear  to  be  in 
any  court  of  the  state.     New  Jersey  appears  nowhere  in  the 
record.     The  title  given  to  the  court  is,  "Gloucester   inferior 
•court  of  common  pleas,"  which  is  not  the  statutory  title. 

4.  The  conduct  of  the  auditors  and  the  report  made  are  illegal. 
They  are  not  arbitrators  nor  can  they  act  as  such.     They  are 
mere  ministerial  officers  and  determine  no  disputed  questions  but 
refer  all  to  the  court  and  jury.     2  Wtts.  §  gftj,  285  ;  Mod.  Eni. 
44,  4&'     Now,  1.  They  did  act  as  arbitrators,  took  oath,  heard 
evidence  and  gave  the  result  of  their  deliberations,  thus  render- 
ing the  action  a  compulsory  arbitration.     2.  It  does  not  appear 
that  they  met  and  heard  at  the  time  appointed  by  the  court.     3. 
The  declaration  calls  for  an  account  from  1802  to  1811.     The 
account  rendered  is  from  1800  to  1810.     3  WUs.  73,  101.     4. 
The  defendant  is  charged  with  half  the  price  of  the  vessel  and 
thus  compelled  to  become  an  involuntary  purchaser.     5.  They 
added  interest  even  beyond  the  date  of  the  report.     Now,  inter- 
est is  damages,  and  joint  tenants  and  tenants  in  common  are  not 
bound  to  pay  more  than  is  actually  received.     6.  What  is  called 
the  report  is  not  so,  it  is  mere  agreement  to  report.     7.  They 
ordered  defendant  to  pay  costs ;  this  could  not  be  at  this  stage  of 
the  cause.     Pat.  140  §  5.     8.  It  does  not  appear  that  the  evi- 
dence was  given  on  oath,  whereas  the  statute  gives  the  power  to 
administer  an  oath.     9.  The  judgment  exceeds  the  report  by  a 
small  sum.     This  is  fatal.     10.  The  account  is  not  entered  upon 
the  record,  and  therefore  this  is  a  judgment  without  anything  to 
support  it. 

5.  The  court  refused  to  hear  exceptions  to  the  report, 

Armstrong,  in  answer.  1.  The  declaration  does,  in  the  words 
of  the  forms,  and  with  sufficient  precision,  state  the  ownership 
of  the  plaintiff  and  the  character  of  bailiff  and  receiver  in  the 
defendant.  Amer.  Prec.  135.  But  if  not  so,  the  defendant 
pleaded  the  general  issue,  which  he  withdrew,  and  confessed  that 
he  was  bailiff,  and  hence  followed  the  judgment  quod  computd. 


932  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Willson  v.  Willson. 


*1  BUG.  36.  The  confession  of  judgment  cures  the  errors  of 
form  in  the  declaration  and  warrant  of  attorney,  if  any  exist, 
which  is  denied. 

2.  The  auditors  could  act  in  no  other  way  under  our  statute. 
They  were  obliged  to  take  and  state  the  account,  and  it  was  their 
duty  to  receive  the  exceptions  and  issues,  if  any  were  made,  and 
return  them  to  the  court.     But  none  were  made.     4  Yeates  358  ; 
3  Woodes  84-     The  error,  if  any,  in  going  back  to  1800  was  at 
the  request  and  to  the  advantage  of  the  defendant.     The  account 
shows  that  he  had  large  claims  beyond  that  date,  which  very 
much  reduced  the  account  of  plaintiff. 

3.  In  judgments  in  account  it  is  the  proper  mode  to  refer  to- 
the  account  rendered  as  the  foundation  of  the  judgment,  and  this 
is  sufficient  to  sustain  it.     But  if  this  be  incorrect  it  is  not, 
therefore,  necessary  to  reverse  the  whole  proceedings.     There  are 
two  judgments ;  the  latter  may  be  reversed,  the  former  main- 
tained.    Eac,.  "  Error." 

4.  As  to  the  refusal  of  the  court  to  hear  exceptions  to  the  re- 
port, it  is  sufficient  to  say  that  this  is  a  writ  of  error,  and  no  suck 
fact,  in  any  way,  appears  upon  the  record. 

KIRKPATRICK,  C.  J. 

This  is  a  writ  of  error  to  Gloucester  pleas  in  an  action  of  ac- 
count. This  form  of  action  is,  in  itself,  very  difficult,  dilatory 
and  expensive ;  it  has  long  since  fallen  into  disuse,  in  a  great 
measure,  in  England,  and  in  New  Jersey  I  have  never  known  or 
heard  of  more  than  two  or  three  cases,  either  in  my  own  time  or 
before ;  and  I  doubt  whether  even  they  were  carried  through  to 
final  judgment.  Hence,  we  have  but  few  precedents  to  guide  us 
in  a  suit  of  this  kind  and  these  few  of  pretty  ancient  date,  not 
very  intelligible  and  still  less  applicable  at  this  day.  In  most 
instances,  therefore,  the  action  on  the  case,  which  is  simple,  easy 
and  well  understood,  has  taken  the  place  of  this  in  the  common 
law  courts,  and,  when  that  did  not  afford  a  complete  remedy,  re- 
sort has  been  had  to  equity,  where  confidential  concerns  and 
trusts  of  this  kind  are  more  properly  cognizable.  Still,  how- 
ever, like  all  other  actions,  it  is  open  to  all,  and  in  some  cases 

*795 


SOUTH.]  FKliUl-AliY  TKIt.M,  1820.  933 


Willson  r  Wilbon. 


"where  the  expense  of  a  court  of  chancery  would  be  too  heavy  f  <  >r 
the  subject-matter,  as  it  must  be  confessed,  under  its  present  es- 
tablishment, it  frequently  would  be,  it  may  also  be  necessary. 

*The  record  is  before  us  and  it  is  our  duty  to  look  into  it. 
There  are  a  great  number  of  errors  assigned,  so  many  that  it 
would  be  exceedingly  tedious  as  well  as  wholly  useless  to  discuss 
them  individually ;  we  may,  therefore,  rather  make  a  classification 
of  them  and  say  that  some  of  them  relate  to  matters  of  mere  form, 
many  of  them  to  the  conduct  of  the  auditors,  and  their  allow- 
ances and  disallowances  in  taking  the  account  and  one  or  two  of 
them  to  the  record  itself. 

Those  which  concern  mere  matters  of  form,  as  the  warrant  of 
attorney,  the  venue,  the  continuances  &c.,  in  all  cases,  after  judg- 
ment, are  aided  by  the  act  concerning  amendments  and  jeofails, 
and  on  writs  of  error  can  never  prevail.  It  is,  therefore,  unneces- 
sary to  speak  of  any  of  these  unless  it  be  to  say  that  the  plain- 
tiff's prosecuting  by  White  and  Armstrong,  his  attorneys,  is  not 
regular,  under  our  statute.  That  declares  no  man  shall  prosecute 
his  suit  except  by  himself  or  by  a  licensed  attorney-at-law.  Now, 
two  joining  themselves  together  in  this  way,  though  they  both 
be  licensed  attorneys,  cannot  bring  themselves  within  this  descrip- 
tion and  make  one  licensed  attomey-at-law.  The  attorneys  are 
considered  as  confidential  officers  of  the  court ;  they  receive  fees, 
and  are  liable  to  penalties  as  such ;  and  may  be  disbarred  for 
malpractice,  (a)  Can  two,  then,  so  conjoin  themselves  together 
as  to  receive  the  privileges  of  one,  and  be  subject  to  the  penalties 
of  one?  If  there  be  malpractice  in  the  conducting  of  a  cause, 
shall  they  both  be  disbarred ;  and  if  not,  which  of  them?  Our 
statute  does  not  contemplate  such  partnerships  in  official  duties, 
and,  therefore,  they  cannot  lawfully  exist.  But,  though  this  be 
irregular,  and  might  have  been  taken  advantage  of  at  the  proper 
stage  of  the  suit,  yet,  after  judgment,  it  is  certainly  too  late. 

Then,  as  to  the  conduct  of  the  auditors,  and  their  allowances 
and  disallowances,  in  taking  the  account. 

The  plaintiff  counts  that  the  defendant,  from  the  1st  cf  May, 

(a)  Anonymous,  2  Hal.  162  ;  In  re  Attorneys  License,  1  Zab.  845. 

*796 


934  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Willson  v.  Willson. 


1802,  until  the  1st  of  December,  1811,  was  proprietor  of  one- 
half,  and  bailiff  of  the  said  plaintiff  of  the  other  half,  of  a  certain 
sloop  called  the  Two  Brothers,  and  had  the  management,  care, 
freighting  and  letting  to  hire  thereof,  and  the  receiving  of  the 
moneys  made  and  earned  thereby,  and  was  to  render  a  reasonable 
account  &c. 

The  defendant  first  pleads  that  he  was  not  bailiff,  but  after- 
*  wards  retracts  his  plea  and  submits  to  account,  thereby  acknowl- 
edging his  liability  and  every  other  material  fact  charged  in  the 
count.  After  this,  he  can  only  acquit  himself  by  showing  the 
amount  of  the  money  actually  received  and  the  necessary  ex- 
penses and  moneys  paid  out  of  the  same,  and  by  delivering  over 
to  the  plaintiff  his  moiety  of  the  balance. 

The  only  plausible  objections  to  the  proceedings  of  the  auditors 
are,  that  they  took  into  the  account  the  moneys  advanced  by  the 
parties  for  the  building  of  the  sloop,  before  the  defendant  became 
bailiff  as  aforesaid ;  and,  also,  that  they  took  into  the  said  account 
the  amount  of  sales  of  the  said  sloop  when  sold  by  the  defend- 
ant, which  selling  was  not  an  act  within  his  bailliage ;  and  that,, 
therefore,  they  exceeded  their  power  and  authority — the  account 
of  the  defendant  as  bailiff,  only,  being  submitted  to  them  to  be 
taken  and  heard.  But  even  these  objections  cannot  be  supported. 

The  defendant  had  advanced  more  than  his  half  part  of  the 
money  for  building  the  sloop  by  nearly  $400,  and  for  this  sum, 
according  to  the  usage  in  such  cases,  he  had  a  lien  upon  the  sloop 
and  her  earnings  and  profits  in  his  hands  until  it  was  satisfied 
and  paid  out  of  the  said  earnings  and  profits  ;  and  having  been 
so  satisfied,  he  exhibited  it  as  an  item  of  credit  to  discharge  him- 
self, pro  tanto,  in  his  account  now  rendered.  It  was  a  proper 
charge  against  the  earnings  of  the  sloop.  It  became  necessary" 
for  the  auditors,  therefore,  to  look  into  this  whole  transaction 
about  the  building  and  to  settle  that  account,  in  order  to  fix  the 
amount  of  this  item  with  intelligence  and  precision.  And  their 
having  done  so,  the  defendant  now  assigns  for  error,  although  he 
himself  compelled  them  to  go  into  it  for  his  own  benefit.  But 
in  this  he  certainly  cannot  prevail.  The  subject  was  beyond 
their  powers  in  appearance  only,  but  not  in  reality ;  so,  too,  as  to> 

*797 


2  SOUTH.]  FEBRUARY  TERM,  1820.  935 


Willson  r.  Willson. 


the  selling  of  the  sloop.  She  was  declared  to  be  no  longer  sea- 
worthy ;  was  not  the  selling  of  her  and  making  the  best  of  her  a 
part  of  his  duty?  Was  it  not  that  very  management  charged 
in  the  count  to  be  committed,  and  necessarily  from  the  nature 
of  the  thing,  actually  committed  to  the  bailiff?  And  being,  too, 
within  the  time  during  which  he  is  charged  as  bailiff,  shall  he 
not  account?  Surely.  These  being  proper  matters,  then,  for 
the  auditors  to  hear,  these  objections  are  done  away.  And  as  to 
the  particular  items  allowed  or  disallowed,  the  *party,  if  he  were 
dissatisfied,  might  have  tendered  issues,  either  in  law  or  in  fact, 
and  having  neglected  to  do  so  he  could  not  have  come,  even  into 
the  court  below,  in  a  summary  way  to  object  to  such  items,  and 
much  less  can  he  come  in  here  now  upon  this  writ  of  error. 

The  auditors  have  stated  the  account ;  they  have  delivered  it 
into  the  court  ;  there  have  been  no  denials  made,  nor  issues  taken 
upon  it ;  the  balance  is  declared  and  judgment  entered ;  there 
can,  therefore,  now  be  no  errors  assigned,  but  such  as  are  ap- 
parent upon  the  face  of  the  record  itself. 

And  the  only  one  assigned  of  any  moment  which  is  so  ap- 
parent, is  that  the  account  itself  taken  by  the  auditors,  exhibit- 
ing all  the  items  thereof  and  the  balance  due,  must  necessarily 
be  entered  upon  the  record  in  order  to  support  the  judgment; 
that  this  is  not  done  here,  and  that,  therefore,  it  is  a  judgment 
without  premises  to  support  it. 

In  looking  into  the  old  entries  on  this  subject  we  find  some 
diversity  in  this  respect.  Some  of  the  rolls  do  contain  the  a<v 
count  returned  by  the  auditors,  in  haec  verba,  with  the  issues 
taken,  if  any,  and  the  trials  and  verdicts  thereupon ;  and  then 
they  close  with  the  second  judgment,  that  the  plaintiff  recover 
the  balance  necessarily  resulting  from  those  verdicts.  Others  do 
not  contain  the  account  returned  by  the  auditors,  but  refer  to  it 
only.  After  stating  the  previous  proceedings  they  say,  Et  idem 
auditores  deliberant  hie  in  curiam  computum  inde  coram  eis  fae- 
tum,  QUI  HUIC  ROTULO  EST  CONSUTTJS  (sometimes  QUI  HUIC 
ROTULO  EST  ANNEXUs),  d  inde,  the  parties,  petunt  breve  &c.  de 
ven.  fa.  &c.,  to  try  the  issues  taken ;  and  then  they  go  on  with 
the  trial,  verdict,  balance,  last  judgment  &c.  j  and  certainly,  iu 

*798 


936  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Strong  v.  Linn. 

point  of  convenience,  this  last  mode,  which  has  been  followed  in 
this  case,  is  far  preferable,  especially  in  modern  times,  when  ac- 
counts are  frequently  too  voluminous  to  be  carried  into  a  record. 
Upon  the  whole,  therefore,  it  is  the  opinion  of  the  whole  court 
that  the  judgment  must  be  affirmed. 

SOUTHARD,  J.,  remarked  that  he  did  not  perceive  any 
error  in  the  manner  of  prosecuting  by  the  attorneys ;  that  the 
statute  did  not  absolutely  require  that  the  party  should  appeajj 
by  one  only ;  that  the  warrant  filed  was  correctly  drawn ;  that 
the  mau*ner  of  endorsing  the  names  on  the  declaration  and  writ 
was  sufficient  to  answer  the  purposes  of  the  statute  ;  and  that  if 
one  of  the  attorneys  of  the  court  should  be  guilty  of  misconduct 
in  his  office  there  would  be  no  difficulty  to  the  court  in  punish- 
ing him,  because  he  was  in  partnership  with  another ;  and  if  the 
client  was  injured  by  the  firm  he,  too,  could  have  his  remedy. 

Judgment  affirmed. 


STRONG  and  HAVENS  v.  LINN. 

1.  Where  sheriff  has  two  writs  of  fi.  fa.  and  levies  on  and  sells  defend- 
ant's goods,  if  plaintiff  in  first  fi.  fa.  take  defendant  with  a  ca.  ea.  and  dis- 
charge him,  the  sheriff  is  not  liable  to  said  plaintiff  for  the  money  made,  (a) 

2.  Witness. 

3.  Evidence. 


In  case. 

• 

Trial  before  Justice  Southard  at  the  Sussex  circuit  in-  Novem- 
ber, 1818.  Rule  to  show  cause  why  a  new  trial  be  not  granted 
at  February,  and  argued  at  September,  1819. 

The  action  was  brought  against  the  defendant,  sheriff  of  the 

(a)  Miller  v.  Miller,  ante  508 ;  see  Den  v.  Morris,  3  Hal.  215;  David  v. 
Blunddl,  10  Vr.  614,  H  Vr.  S76. 

*799 


2  SOUTH.]          FEBRUARY  TERM,  1320.  937 

Strong  v.  Linn. 

•county  of  Sussex,  for  making  a  false  return  and  not  making  and 
paying  the  money  upon  an  execution  in  favor  of  the  present 
plaintiffs  against  Jacob  Kerr.  The  facts,  as  they  appeared  at 
the  trial,  were,  in  substance,  the  following : 

A  fi.  fa.  de  bon.  et  ter.  in  favor  of  John  Barnet  against  Kerr, 
for  $670,  and  returnable  to  November  term,  1814,  was  put  into 
the  hands  of  B.  T.  Hunt,  the  deputy  sheriff.  -After  this,  another 
fieri  facias,  in  favor  of  the  plaintiffs,  for  $579.46,  returnable  to 
the  same  term,  was  delivered  to  Hunt.  At  the  defendant's  re- 
quest, Hunt  levied  on  and  sold  his  real  estate ;  paid  Barnet's 
execution ;  and,  in  part,  satisfied  the  plaintiffs'.  At  a  sale  of 
part  of  the  land,  Barnet  bid  $2,500,  but  refused  to  comply  with 
his  bid.  It  was  again  sold  and  bid  to  §302.50,  and  other  land 
to  $90.  Kerr  requested  and  urged  the  sheriff  to  sue  Barnet  for 
not  complying  with  his  bid,  and  he  did  so,  upon  Kerr's  giving 
him  bond,  with  security,  to  indemnify  him  against  the  costs  of 
the  suit.  After  trial,  verdict  and  judgment  were  rendered  in 
favor  of  Barnet. 

A  third  fieri  facias  against  Kerr  in  favor  of  J.  Armstrong, 
Esq.,  for  $2,145.23,  was  delivered  to  Hunt,  returnable  to  May, 
1815,  and  levied  on  personal  property.  At  the  sale  under  this 
fieri  facias,  E.  Green,  former  sheriff,  claimed  the  property  in 
virtue  of  &  fieri  facias  in  his  hands,  whereupon  Armstrong  agreed 
*to  pay  him  the  balance  due  of  about  $60,  and  Hunt  sold  the 
goods  and  Armstrong  purchased  them  to  the  amount  of  $562.50, 
and  at  the  foot  of  a  list  of  the  articles  made  by  Hunt  put  an  as- 
signment of  his  right  therein  to  Thomas  Bullman  and  gave  Hunt 
a  receipt  on  bis  fieri  facias  for  the  amount 

The  defendant  offered  to  prove  that  after  the  facts  before 
stated  had  taken  place,  the  present  plaintiffs  sued  out  a  ca.  sa. 
and  arrested  Kerr,  and  before  he  was  confined  directed  him  to 
be  discharged,  and  brought  the  present  action  against  the  sheriff 
because  he  had  not  applied  the  proceeds  of  the  sale  of  personal 
goods  to  their  execution.  But  the  evidence  was  objected  to  and 
the  judge  sustained  the  objection.  The  defendant  also  olH  ml 
Armstrong  as  a  witness  to  prove  that  the  sales  on  Green's  and 
Hunt's  executions  were  advertised  at  the  same  time,  and  that  he, 

*800 


938  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Strong  v.  Linn. 

Armstrong,  agreed  to  pay  Green's  if  they  would  let  the  property 
go  to  his  execution,  and  that  it  was  credited  on  his.  The  wit- 
ness being  objected  to  was  rejected.  E.  Green  was  then  sworn 
and  proved  the  same  facts,  and  that  Armstrong  paid  him  $60, 
the  balance  due  on  his  fieri  facias,  and  took  the  same  on  himself. 

The  defendant  claimed  to  have  deducted  from  the  amount  of 
sales  to  Armstrong  the  costs  on  the  suit  against  Barnet  on  his 
bid.  But  the  attorney  of  the  plaintiff  in  that  suit  declared  that 
he  had  relied  upon  the  bond  taken,  and  was  satisfied  by  it,  for 
the  said  costs,  although  no  payment  had  been  made  nor  receipt 
given,  and  the  judge  declared  it  as  his  opinion  that  the  costs 
ought  not  to  be  deducted. 

The  plaintiffs  agreed  to  deduct,  and  did  deduct,  from  their 
claim  on  the  amount  of  the  goods  sold  the  $60  claimed  by  and 
paid  to  Green  on  his  fieri  facias,  and  the  jury  rendered  a  verdict 
in  their  favor  for  the  balance. 

Halsey,  in  support  of  the  rule,  argued — 1.  That  the  sheriff 
was  bound  to  sue  Barnet,  and  therefore  entitled  to  retain  the 
costs  out  of  the  balance  of  the  property.  That  the  plaintiff 
declared  himself  satisfied  made  no  difference.  Until  a  release 
was  given,  a  liability  to  pay  was  sufficient  to  authorize  him  to 
retain.  He  had  especially  a  right  to  retain  his  own  costs  which 
he  had  paid  out.  2.  That  Armstrong  had  no  interest  in  the 
suit.  He  was  entitled  to  the  money  he  had  received.  3  Bur. 
1354-  The  sheriff  *knew  the  facts ;  was  bound  to  see  that  he 
paid  to  the  right  person,  and  he  could  not  recover  it  back  as  paid 
by  mistake.  1  Esp.  5,  6,  7.  Armstrong  could  in  good  con- 
science retain  it,  and  is  in  the  situation  of  every  other  purchaser 
at  sheriff's  sale.  3.  The  suing  out  of  the  ca.  sa.  and  the  dis- 
charge of  the  defendant  satisfy  the  plaintiffs'  judgment,  and  they 
can  have  no  further  or  other  claim  against  the  defendant  or  the 
sheriff.  4  Mass.  402;  3  Mass.  561;  Imp.  Prac.  £69,  270; 
Barnes's  Notes  205,  376;  Cowp.  72;  1  T.  R.  278;  3  Johns.  364; 
Coxe  160,  162,  164;  %  Sw.  Sys.  281. 

Attorney- General,  in  answer.     1.  The  claim,  as  to  costs,  was 

*801 


2  SOUTH.]  FEBRUARY  TERM,  1820.  939 

Strong  v.  Linn. 

not  a  legal  ground  of  off-set.  The  sheriff  had  not  paid  them, 
and  a  liability  to  pay  is  not  sufficient.  2.  He  had  no  right  to 
prosecute  the  suit,  either  of  his  own  accord  or  at  the  instance  of 
Kerr,  unless  he  looked  to  Kerr  to  indemnify  him.  3.  The 
attorney  of  the  plaintiff  freed  him  from  all  liability  to  pay. 

2.  As  to  Armstrong's  competency.     1.  His  evidence  was  to 
support  his  own  claim.     2.  The  money  may  be  recovered  from 
him  as  paid  by  mistake  (Esp.  2),  or  on  the  bill  of  sale,  and  the 
receipt  on  his  execution  will  be  no  bar.     3.  His  testimony  was 
wholly  immaterial.     And  4.  Justice  was  done ;  the  credit  was 
allowed. 

3.  The  issuing  of  the  ca.  sa.  was  induced  by  the  false  return 
of  the  sheriff  stating  that  there  were  no  goods  or  lands.    3  Mass. 
561.     And  the  doctrine  now  contended  for  is  not  true.    5  Co.  R~ 
67;  2  W.  Bl.  1235;  4  Bur.  2422;  1  Chit.  360;  Coxe  167. 

Opinion  of  the  court  was  expressed  by  the  chief-justice. 

KIRKPATRICK,  C.  J. 

This  is  a  motion  for  a  new  trial.  The  substance  of  the  case,, 
omitting  immaterial  circumstances,  is  this : 

Havens  and  Strong  had  an  execution  against  one  Kerr,  issued 
out  of  the  inferior  court  of  common  pleas  of  the  county  of  Sussex, 
returnable  to  November  term,  1814,  for  the  sum  of  $597.46  ;. 
upon  this,  and  a  prior  execution  in  his  hands  returnable  to  the 
same  term,  Linn,  the  then  sheriff,  by  the  request  of  Kerr,  levied 
upon  and  sold  his  real  estate  and  paid  the  proceeds  thereof  upon 
those  executions,  according  to  their  priority,  leaving  a  balance 
due  upon  that  of  the  plaintiffs. 

After  this,  one  Armstrong  obtained  a  judgment  against  the 
same  Kerr  for  $2,165.25,  and  sued  out  execution  thereupon,  re- 
turnable to  May  term,  1815,  upon  which  execution  the  same 
sheriff  seized  and  sold  certain  goods  of  the  said  Kerr,  then  found, 
to  the  amount  of  $500,  and  paid  the  same  to  the  said  Armstrong. 

Subsequent  to  all  these  proceedings  Havens  and  Strong  sued 
out  a  ca.  sa.  for  the  residue  of  their  judgment,  upon  which  Kerr 
was  arrested  and  taken  into  custody,  and  was  afterwards  dis- 

*802 


940  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Strong  v.  Linn. 

Charged  by  their  order.  They  then  brought  this  action  against  the 
sheriff  for  the  said  residue  of  their  debt,  because  he  had  neglected 
or  refused  to  levy  upon  and  sell  these  goods  by  virtue  of  their 
execution,  and  to  apply  the  proceeds  thereof  towards  the  payment 
of  the  same,  alleging  that  the  said  goods  were  then  the  property 
of  the  said  Kerr,  and  in  his  hands ;  that  they  were  bound  by 
their  said  execution,  and  ought  to  have  been  levied  on  and  sold 
for  their  benefit. 

Upon  the  trial  of  the  cause  we  are  to  presume  these  allegations 
respecting  these  goods  were  made  out  to  the  satisfaction  of  the 
jury,  for  there  was  a  verdict  for  the  plaintiffs.  And  the  question 
is  whether,  upon  this  state  of  facts,  they  were  entitled  to  .recover 
against  the  sheriff  after  having  so  taken  the  defendant  upon  a 
ca.  sa.  for  the  same  residue,  and  then  discharged  him  out  of 
custody. 

The  case  of  Ustic  v.  Allen,  in  this  court  (Coxe  168),  I  think, 
settles  this  question,  and  even  goes  further.  There  the  sheriff 
had  rendered  himself  liable  to  amercement  for  the  debt  and  costs 
before  the  ca.  sa.  and  discharge  ;  and  upon  a  motion  to  amerce, 
which  aims  at  the  punishment  of  the  officer  as  well  as  the  pay- 
ment of  the  debt,  it  was  adjudged  for  the  sheriff,  for  the  debt 
was  satisfied  by  the  taking  of  the  defendant's  body. 

But  as  there  seems  *  to  be  some  doubt  about  the  principles  of 
the  law  upon  this  subject,  it  may  be  well  to  look  into  it  a  little. 

We  will  take  it  that  the  sheriff  had  rendered  himself  liable 
for  this  residue,  and  that,  being  so  liable,  the  plaintiffs  took  out 
a  ca.  sa.  against  the  defendant  and  caused  him  to  be  taken  into 
•custody,  and  then  discharged  him,  and  the  question  will  be 
whether  they  can  come  back  upon  the  sheriff. 

If  a  man  be  arrested  upon  a  ca.  sa.  he  shall  be  considered  as 
in  custody  immediately  upon  the  arrest,  and  before  the  return  of 
the  writ.  1  Roll.  901.  Whether  Kerr,  then,  had  been  actually 
locked  up  in  the  prison  or  not,  and  whether  the  plaintiffs,  upon 
the  return  of  the  writ,  had  entered  a  committitur  or  not,  makes 
*no  difference.  As  soon  as  he  was  arrested  the  ca.  sa.  was  exe- 
cuted ;  he  was  in  custody  upon  it ;  the  plaintiffs  had  the  effect 
of  it. 

*803 


FEBRUARY  TERM,  1820.  841 


Strong  p.  Linn. 

Now,  if  a  ca.  sa.  be  executed,  that  is  sufficient  in  law  for  the 
whole  debt  ;  for  corpus  humunum  non  recipit  estimationem  ;  so 
that  if  you  take  the  body  at  all  you  take  it  for  the  whole  debt. 
Hob.  52.  Again.  A  ca.  sa.,  as  respects  the  party  against  whom 
it  is  taken,  is  a  full  satisfaction  by  force,  act  and  judgment  of 
law,  so  that  against  him  and  his  representatives  there  can  be  no 
other,  for  when  the  plaintiff  hath  begun  and  chosen  the  body  he 
can  resort  to  no  other  execution  against  the  self-same  party. 
Hob.  59.  It  is  a  complete  satisfaction,  in  law,  of  that  very  suit 
or  judgment  in  which  it  is  taken.  Ibid.  It  is  true  that  the 
common  law  has  been  altered  by  statute  in  this  respect,  in  cases 
where  the  defendant  escapes  or  dies  in  prison  ;  there,  by  the  force 
of  the  statute,  there  may  be  a  resort  to  the  goods,  but  in  all  other 
cases,  and  especially  a  case  like  this,  it  still  remains  in  its  full 
force.  So  far  as  respects  Kerr,  then,  and  so  far  as  respects  this 
residue,  as  a  part  of  this  very  suit  and  this  very  judgment,  this 
ca.  sa.  was  a  complete  satisfaction. 

It  must  be  admitted,  however,  that  though  this  be  so,  yet  it  i» 
not  a  satisfaction  in  the  same  sense  and  to  the  same  extent  as  the 
payment  of  the  money  would  be  ;  it  is  not  a  satisfaction  to  all 
purposes,  and  in  favor  of  all  persons.  As  if  two  be  bound  in  a 
bond,  jointly  and  severally,  and  there  be  several  judgments 
against  them,  and  one  be  taken  on  a  ca.  sa.}  that  cannot  be  pleaded 
in  satisfaction  by  the  other,  though  it  be  for  the  very  same  debt. 
Hob.  60.  So  if  two  commit  a  trespass,  and  there  be  several 
judgments,  and  one  be  taken  upon  a  ca.  sa.,  the  other  cannot 
plead  this  in  exoneration  of  himself,  though  the  plaintiff  has  but 
one  satisfaction.  But  this  regards  the  mere  taking  of  the  body 
only,  without  regard  to  ulterior  proceedings  ;  for,  even  in  these 
cases,  if  one  be  actually  taken,  and  then  suffered  to  go  at  large  by 
the  license  or  command  of  the  plaintiff",  it  may  be  pleaded  by  the 
other,  and  shall  be.  a  complete  discharge.  Cro.  Car.  75. 

The  case  of  Hayling  v.  Mullhatt,  2  Black.  1235,  has  been  cited 
as  containing  a  doctrine  contrary  to  this  last.  There  the  endorsee 
of  a  bill  of  exchange  sued  the  last  endorser,  and  took  his  body 
in  execution,  and  afterwards  let  him  out  on  a  letter  of  license  ; 
then  he  sued  the  first  endorser,  and  it  was  pleaded  that  *the 

*804 


942  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Strong  v.  Linn. 

debt  was  satisfied  by  the  imprisonment  of  him  that  was  first  sued, 
and  held  to  be  a  good  plea.  And,  though  I  do  not  very  well 
see  the  force  of  what  the  judges  there  say  in  support  of  their 
opinion,  yet  there  was  this  good  reason  for  it,  that  it  was  of  no 
consequence  to  the  first  endorser,  whether  the  last  was  discharged 
•or  not;  it  did  not  at  all  affect  his  ultimate  liability;  he  had 
•endorsed  the  bill,  and  he  must  answer  for  the  amount  to  some- 
body if  the  drawer  did  not  pay.  But  if  the  endorsee  had  first 
sued  the  drawee  of  the  bill  upon  his  acceptance,  and  taken  his 
body,  and  afterwards  had  discharged  him  from  imprisonment, 
and  then  sued  this  endorser,  would  it  not  have  been  otherwise  ? 
Certainly.  For  an  arrest  and  discharge  of  the  original  debtor 
would  have  been  a  satisfaction  as  to  him,  and,  of  course,  to  all 
the  endorsers,  for  they  could  have  no  resort  to  him  afterwards. 
But  whatever  may  be  said  with  respect  to  liabilities  upon  bills 
of  exchange,  the  general  doctrine  is,  that  wherever  the  actual 
payment  of  the  money  might  be  pleaded  as  a  satisfaction  and  as 
a  total  discharge  of  him  that  pleads  it,  a  voluntary  discharge  upon 
<a  ca.  sa.  may  also  be  pleaded,  and  the  party  against  whom  it  is 
pleaded  shall  not  be  permitted  to  aver  against  it  that  the  money 
has  not  been  actually  paid.  Whitnax  v.  Hankinson,  Cro.  Car.  75. 

If,  therefore,  we  view  this  action  as  founded  upon  the  judg- 
ment against  Kerr,  and  as  a  means  of  compelling  the  payment 
of  this  residue  out  of  his  property,  the  plaintiffs  must  fail,  for 
that  judgment  is  already  satisfied  by  the  body.  If  we  view  it  as 
founded  upon  the  liability  of  the  sheriff  for  his  neglect  of  duty, 
without  relation  to  Kerr's  property  at  all,  the  plaintiffs  still 
must  fail ;  for  the  sheriff,  having  rendered  himself  answerable 
for  the  debt,  stands  in  the  nature  of  a  security  only,  or,  if  you 
please,  in  the  situation  of  a  co-obligor,  jointly  and  severally  bound, 
and,  therefore,  may  plead  the  discharge,  and  it  shall  be  a  good 
plea. 

In  whatever  light  we  view  it,  therefore,  I  think  the  plaintiffs 
must  fail,  and,  therefore,  that  the  verdict  must  be  set  aside. 

ROSSELL,,  J. 

The  case  in  Coxe  168  is  conclusive- 


2  SOUTH.]  FEBRUARY  TERM,  1820.  94£ 

Strong  v.  Linn. 

z • ' 

SOUTHARD,  J.,  dissented. 

This  case  conies  up  upon  objections  to  opinions  delivered  by 
myself  upon  three  questions  which  arose  at  the  trial.  Upon  the 
best  view  which  I  have  been  able  to  take  of  the  case,  and  the 
argument  delivered  upon  the  rule,  I  still  remain  of  the  same 
opinion  which  I  expressed  upon  all  the  points. 

*The  suit  was  brought  by  Strong  and  Havens  against  the 
sheriff  for  neglecting  to  levy,  make  and  pay  over  the  money  due 
upon  an  execution,  in  their  favor,  against  Jacob  Kerr ;  and  so 
far  as  the  facts  appeared  at  the  circuit  and  are  necessary  to  a 
correct  understanding  of  the  points  raised,  they  are  as  follows  : 
Four  writs  of  fi.  fa.  de  bon.  et  ter.  were  regularly  issued  against 
Kerr  and  came  into  the  hands  of  the  sheriffs  in  the  following 
order  :  One  to  Sheriff  Green,  and  one  in  favor  of  John  Barnet, 
one  in  favor  of  Strong  and  Havens  and  one  in  favor  of  John 
Armstrong  to  Sheriff  Linn.  Regular  levies  were  made  and  re- 
turned upon  all  these  writs.  Linn  received  from  Kerr  §450  and 
applied  it  to  Barnet's  execution,  which  left  something  more  than 
$200  due  upon  it.  After  this,  at  the  request  of  Kerr,  his  real 
property  was  advertised  by  Linn  and  struck  off  upon  the  bid  of 
Barnet  for  §2,500,  but  he  gave  notice  that  hfe  had  bid  under  a 
mistake  and  should  not  abide  by  it.  The  sheriff  exposed  the 
lard  a  second  time  and  sold  it  for  $392.50,  and  discharged  Par- 
net's  execution.  He  also  exposed  Kerr's  personal  property  and 
sold  it  for  §562.50.  Armstrong  was  the  purchaser,  and  gave  an 
acknowledgment  of  the  purchase  on  the  list  of  the  articles  and  a 
receipt  for  the  amount  on  his  execution.  It  was  of  this  payment 
of  the  money  to  Armstrong  that  Strong  and  Havens  complained, 
their  execution  being  the  oldest. 

After  the  plaintiffs  had  rested  the  defendant  offered  to  prove 
that  after  the  sale  of  Kerr's  personal  property  to  Armstrong, 
and  taking  his  acknowledgment  and  receipt,  a  ca.  «a.  was  issued 
in  favor  of  Strong  and  Havens,  and  Kerr  taken  by  the  sheriff 
but  discharged  by  their  order  before  he  was  confined ;  and,  after 
his  discharge,  the  present  suit  was  brought.  This  .evidence,  after 
argument,  was  overruled. 

John  Armstrong  was  offered  as  a  witness  to  prove  that  at  the 

*805 


944  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Strong  v.  Linn. 

sale  of  personal  property,  Green,  who  held  the  first  execution,, 
demanded  that  it  should  be  first  satisfied,  and  that  he,  supposing^ 
that  the  proceeds  of  the  sale  would  go  to  his  execution,  agreed 
to  and  did  pay  Green  the  amount  of  his  claim,  which  was  about 
$60.  He  was  objected  to  and  declared  by  the  court  to  be  an  in- 
competent witness.  Those  facts  were  then  all  proved  by  E. 
Green,  and  the  plaintiffs  admitted,  before  the  jury,  that  it  was 
proper  to  deduct  the  $60  out  of  the  amount  for  which  the  goods 
sold  and  for  which  they  claimed  a  verdict.  The  defendant  also 
*claimed  allowance  for  the  amount  of  the  costs  upon  an  action 
by  the  sheriff  against  Barnet  upon  his  bid  at  the  first  vendue  of 
the  real  estate.  It  was  agreed  by  the  .parties  that  after  Barnet 
refused  to  take  the  land  at  his  bid  Kerr  applied  to  the  sheriff  ta 
bring  suit  against  him,  and,  with  good  security,  entered  into  a 
bond  to  indemnify  him  from  any  costs  which  should  be  created 
by  the  suit.  The  action  was  accordingly  prosecuted  and  verdict 
and  judgment  rendered  in  favor  of  Barnet,  and  the  attorney  of 
the  sheriff  declared,  in  the  presence  of  the  court  and  jury,  that 
he  relied  upon  the  bond  which  had  been  given,  was  satisfied  with 
it,  and  had  no  claim  upon  anyone  for  any  costs  in  that  action. 
Upon  these  facts  it  was  submitted  whether  these  costs  ought  to- 
be  proved  and  deducted  from  the  balance,  and  the  judge  declared 
it  as  his  opinion  that  they  ought  not.  There  was  verdict  for  the 
plaintiff  for  the  amount  of  the  sales  of  personal  property  after 
deducting  what  was  paid  to  Green. 

I  will  notice  the  three  objections  in  their  order.  1.  There  was 
error  in  not  directing  the  costs  of  the  suit  of  Linn  v.  Barnet  to 
be  deducted. 

I  do  not  understand  that  a  sheriff  is  bound  to  bring  suit  and 
expend  his  own  or  the  plaintiff's  mone^  in  order  to  enforce  every 
questionable  bid  which  may  be  made  at  sales  of  property  by  him. 
Neither  law  nor  the  interest  of  parties  requires  it.  He  may  re- 
fuse to  sue  until  an  indemnity  for  the  costs  &c.  be  given  to  him,, 
and  if  he  does  so  refuse  and  takes  a  bond  to  indemnify  him  I  do 
not  perceive  by  what  right  he  can  desert  that  bond  and  claim 
the  costs  from  another  source.  In  this  case  the  defendant  seems 
to  have  been  aware  that  the  bid  of  Barnet  could  not  be  enforced, 

*806 


2  SOUTH.]  FEBRUARY  TERM,  1820.  945 

Strong  v.  Linn. 

and  he,  therefore,  refused  to  attempt  to  enforce  it  until  Kerr,  the 
person  whose  projxjrty  was  sold,  gave  him  security  for  the  costs. 
Why,  then,  should  these  costs  be  taken  out  of  the  amount  which 
was  coming  to  the  plaintiffs?  The  suit  was  not  brought  at  their 
request  but  at  the  request  of  Kerr.  The  plaintiffs  gave  no 
promise  of  indemnity.  Why  should  they  pay  for  Kerr's  acts  ? 
Besides,  there  were  really  no  costs  to  come  out  of  the  sum  made 
by  the  sale  of  the  property.  The  attorney  of  the  plaintiff  in 
that  suit  had  looked  to  his  bond  and  was  satisfied  with  it,  and 
acknowledged  that  no  costs  were  due.  How,  then,  was  it  pos- 
sible that  any  should  be  deducted  ? 

2.  As   to   Armstrong's   interest.     The  plaintiffs,  Strong  and 
Ha*vens,  claim  the  amount  of  certain  personal  property  sold  by 
the  sheriff  and  bought  by  Armstrong.    At  the  foot  of  a  schedule 
or  list  of  the  property  so  sold,  Armstrong  signed  an  acknowledg- 
ment that  he  bought  this  property,  and  stated  the  sum  given. 
This  sum  was  endorsed  on  his  execution,  and  he  thus  received 
the  benefit  of  it.     If  he  was  not  entitled  to  receive  it,  if  it  was 
paid  to  him  by  mistake,  it  may  certainly  be  recovered  from  him 
upon  the  plainest  legal  principles.      But  the  question  whether 
he  was  entitled  to  it,  depends  altogether  upon  the  fact  whether 
Strong  and  Havens  recovered  in  this  action  or  not.     If  they 
were  entitled  to  it,  he  was  not ;  if  they  were  not,  he  was.    Their 
right  to  it  was  to  be  settled  in  this  action,  and  to  be  more  or  less 
governed  by  this  evidence.     To  me,  therefore,  the  interest  seems 
positive,  direct  and  immediate.    If  Strong  and  Havens  recover,  he 
must  refund  the  money  ;  and  he  may  be  compelled  to  do  it  either 
upon  the  general  principle  of  money  received  by  mistake,  or  by 
force  of  the  acknowledgment  at  the  foot  of  the  articles  bought. 

But  even  if  this  were  not  so,  I  am  not  satisfied  that  a  new 
trial  should  be  granted.  The  facts  which  he  was  offered  to 
prove  were  amply  .proved  by  the  most  unexceptionable  evidence 
afterwards,  and  defendant  had  the  benefit  of  them. 

3.  As  to  the  effect  of  the  ca.  sa.    This  ca.  sa.  was  issued  aftrr 
the  execution,  which  was  the  foundation  of  this  suit,  and  after 
the  default  of  the  sheriff;   and,  also,  after  the  sheriff  had  tin- 
money  in  his  hands.     Now,  whatever   may  be   the   law  as  to 

*807  60 


946  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Strong  v.  Linn. 

issuing  a  fieri  facias  after  the  body  has  been  taken  under  a  ca. 
sa.,  surely  the  issuing  of  a  ca.  sa.  can  neither  divest  out  of  the 
plaintiff  rights  which  are  vested  in  him,  nor  save  the  previous 
liabilities  of  the  defendant  and  justify  him  in  keeping  money 
to  which  he  had  no  right,  but  which  he  had  made  for  another. 
If  the  execution  had  given  the  plaintiffs  a  right  to  the  money ; 
if  the  money  were  already  legally  theirs,  however  Kerr  might 
complain  of  the  imprisonment  of  his  body,  that  imprisonment 
would  not  restore  to  him  his  property.  If  the  sheriff  had  sub- 
jected himself  to  prosecution ;  if  he  had  the  money  in  his  hands, 
a  ca.  sa.  never  could  relieve  him  from  that  prosecution  and 
authorize  him  to  keep  the  money ;  especially  when  the  ca.  sa. 
was.  issued  under  a  mistake  created  by  his  conduct  in  making  an 
incorrect  return,  and  paying  the  money  to  a  wrong  person.  Be- 
sides, the  money  being  due  on  the  fieri  facias  of  the  plaintiffs, 
if  hQ  is  not  obliged  to  pay  the  *money  to  them,  I  know  not  who 
has  a  right  to  call  on  him  for  it.  And,  in  this  case,  the  plaintiffs 
seem  to  me  not  chargeable  with  any  intentional  wrong  to  Kerr 
in  suing  out  the  ca.  sa.  They  were  deceived  by  the  sheriff  and 
discharged  him  as  soon  as  they  knew  the  course  which  the  sheriff 
had  taken,  and  that  their  money  really  had  been  made  out  of 
defendant's  property. 

I  do  not  perceive  that  this  case  can  be  affected  by  the  fact  that 
Armstrong  agreed  to  satisfy  Green's  execution.  What  he  paid 
on  that  execution  was  first  to  come  out  of  the  property  sold, 
and  was,  therefore,  properly  credited  by  the  plaintiff  in  this 
suit ;  and,  by  that  credit,  it  was  restored  to  Armstrong,  for  he 
was  thus  permitted  to  retain  so  much  on  his  execution.  And 
even  if  this  were  not  so,  the  rights  of  the  plaintiffs  would  not 
be  altered.  If  a  third  person,  either  through  friendship  or  in- 
terest, chose  to  satisfy  a  previous  execution,  it  did  not  lessen  the 
lien  of  their  execution.  It  still  bound  and  held  the  property, 
and  the  only  effect  of  such  a  procedure  would  be  to  free  the 
property  from  previous  liens  and  leave  it  unencumbered  for  the 
satisfaction  of  this. 

I,  therefore,  see  no  reason  why  the  verdict  should  be  set  aside. 

New  trial  granted. 
*808 


2  SOUTH.]  FEBRUARY  TERM,  1820.  947 

Burrough  v.  Vanderveer. 


ABRAHAM  SWISHEB  v.  WILLIAM  HIBLER. 

Scire  facias,  (a) 
On  certiorari. 

On  the  17th  of  June,  1816,  Jacob  Kerr,  then  one  of  the  justices 
of  the  peace  of  Sussex  county,  gave  judgment  in  favor  of  Hibler 
against  Swisher  for  $93.55.  On  the  19th  of  April,  1819,  a  scire 
Jacias  was  issued  to  revive  the  judgment.  Before  issuing  this 
-scire  facias  the  time  of  office  of  Justice  Kerr  had  expired. 
And  Ewing,  for  the  plaintiff  in  certiorari,  urged  that  the  scire 
Jacias  was  not  a  common  law,  but  statutory  proceeding;  and 
jthat  this  was  a  case  in  which  it  could  not  issue,  because  it  had 
not  been  provided  for  by  the  statute.  See  act  of  February,  1812. 
Wall  answered,  but  the  court  unanimously  reversed  the  judg- 
ment upon  the  acire  facias. 


*BENJAMIN  BURROUGH  t>.  DAVID  VANDERVEER. 

Jurisdiction  of  justice.  (6) 
On  certiorari. 

Vanderveer,  as  assignee  of  Thomas  Bispham,  brought  an  action 
of  covenant  upon  the  warranty  in  a  deed  for  a  lot  of  land,  and 
assigned  as  breach  that  the  defendant  had  not  good  title  when  he 

(a)  Clark  v.  Custard,  1  South.  210  ;  Boylan  v.  Andason,  Pmn.  *5S9  ;  TindaU 
v.  Carton,  1  Harr.94  ;  see  Revised  Statutes  "Justices  Courts"  {  ft? ;  Acts cf  1875 
31. 

(b)  Slaclnocll  v.  Leslie,  1  South,  lit;   PicUe  v.  Covenhoven,  1  South.  319; 
Vantyl  v.  Marsh,  ante  507;   Westbrook  v.  Eager,  1  Harr.  84;    Winter  T.  Peter- 
son, 4  Zab.  5S4. 

*809 


948  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Warne  v.  Rose. 


made  the  deed.  At  the  trial  several  deeds  were  given  in  evi- 
dence, and  motion  for  a  nonsuit  made.  Judgment  for  plaintiff 
for  $71.02. 

A  reversal  was  moved  by  White,  for  plaintiff. 

COURT.  The  justice  had  no  jurisdiction  by  the  express  pro- 
visions of  the  statute.  The  title  to  the  land  was  the  very  ques- 
tion in  issue. 

Judgment  reversed. 


HENRY  WARNE  v.  JOHN  ROSE  and  PETER  LEONARD.    . 

Joint  action  by  constables,  (a) 
On  certiorari. 

This  was  an  action  of  trover  and  conversion  brought  by  the- 
two  plaintiffs  below,  as  constables,  for  certain  goods,  on  which 
they  alleged  that  they  had  levied  by  virtue  of  several  executions 
which  had  come  into  their  hands.  Judgment  was  given  for  them. 
Ewing  moved  the  reversal  of  the  judgment,  and — 

BY  THE  COURT.  No  joint  rights  can  exist  in  these  plaintiffs 
in  consequence  of  separate  levies  made  by  them  on  the  goods  in 
virtue  of  separate  executions.  No  joint  action  can  be  main- 
tained by  them. 

Judgment  reversed. 

(a)  Biahop  v.  Harvey,  Penn.  *645;  Maffet  ads.  Den,  Tonkins,  1  Hal.  HX8  - 
Church  v.  Muir,  4.  Vr.  S2X. 


2  SOUTH.]  FEBRUARY  TERM,  1820.  949 

Overseers  of  Mendbam  v.  Overseers  of  Morris. 


LlNBERGER  V.   LATOURETTE  and   GARTZMAN. 
Proof  of  books,  (a) 
On  certiorari. 


The  action  was  founded  on  a  book  account,  and  at  the  trial 
the  books  were  offered,  but  not  proved,  the  justice  supposing 
that  it  was  sufficient  that  they  had  been  proved  before  him  on  a 
former  occasion. 

Judgment  reversed. 


*OVERSEER8  OF  THE  POOR  OF  MJENDHAM  V.  OVERSEERS  OF 

MORRIS. 

State  of  case  from  sessions.  (6) 

On  certiorari. 

Certiorari  to  the  sessions.  On  motion  of  the  attorney-gen- 
•eral,  ordered  that  the  sessions  send  up  a  statement  of  the  case  as 
it  appeared  before  them. 

(a)  See  Trimmer  v.  Larrison,  S  Hal.  66;  Oamdcn  and  Amboy  R.  R.  v.  Stewart, 
4  C.  E.  Or.  843;  Jessup  v.  Cook,  1  Hal.  484. 

(6)  Orange  v.  Springfield,  1  South.  186;  Curtis  v.  Hall,  1  South.  S61  (a); 
Xichols  v.  State,  ante  548  ;  see  Sheppard  v.  Miller,  Coze  40*  ;  Newton  v.  Gloucet- 
ter,  1  Hal.  405;  Scott  v.  Ecatty,  S  Zab.  S56  ;  Par  sell  v.  StaU,  1  Vr.  530. 

*810 


950  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Miller  v.  Tuttle. 


JOHN  P.  VANPELT  at  suit  of  RICHARD  WHITLOCK. 

Withdrawing  plea  after  cause  noticed  for  trial,  (a) 


This  action,  for  slander,  was  originally  brought  in  the  com- 
mon pleas  of  Monmouth,  and  was  removed  into  the  supreme- 
court  by  habeas  corpus;  and  here  the  defendant  pleaded  not 
guilty,  and  justification.  The  cause  was  carried  down  to  the- 
circuit  but  not  tried.  After  which,  upon  due  notice  given,  the 
defendant  prayed  leave  to  withdraw  the  plea  of  justification,  and 
leave  the  issue  upon  the  plea  of  not  guilty.  The  motion  was 
opposed,  but  leave  granted,  and  the  plea  withdrawn. 


MILLER  v.  TUTTLE.    -.,-. 

Judgment  against  insolvent  debtor. 
On  certiorari. 

SOUTHARD,  J. 

The  defendant  pleaded  his  discharge  under  the  insolvent  laws 
on  the  22d  of  February,  1817.  The  note  on  which  the  suit  is 
founded  is  dated  the  8th  of  November,  1816,  payable  in  thirty 
days.  The  judgment  is  in  these  words :  "  I  gave  judgment 
against  the  goods  of  the  defendant,  in  favor  of  the  plaintiff, 
nineteen  dollars  and  twelve  cents,  debt "  &c. 

This  judgment  is  erroneous.  It  must  be  against  defendant.. 
It  cannot  be  against  his  goods.  It  should  be  against  defendant, 

(a)  See  Little  v.  Bolles,  7  Hal.  171;  Van  Dyke  v.  Van  Dyke,  4  Harr.  1 ,- 
Mayor  &c.  of  Hoboken  v.  Gear,  3  Dutch.  265;  Crawford  v.  N.  J.  R.  R.,  4  Dutch* 
480 ;  JBruch  v.  Carter,  5  Vr.  554. 


2  SOUTH.]  FEBRUARY  TERM,  1820.  951 

Smalley  < .  Vanorden. 

to  be  made  of  his  goods  only.  And  I  think  it  very  questionable 
whether  such  an  execution  as  would  be  required  could  be  issued 
by  the  justice,  and  if  not,  he  had  not  jurisdiction  of  the  cause. 

Judgment  reversed. 


*SMALLEY  and  CORRIELL  v.  VANORDEN. 

1.  Sealing  bail-bond,  (a) 

2.  Witness.  (6) 

3.  Appearance  of  defendant  under  bail-bond,  (c) 

On  certiorari. 

SOUTHARD,  J. 

This  was  an  action  upon  a  bail-bond,  and  several  objections 
have  been  urged. 

1.  It  is  said  that  the  bond  was  not  obligatory.     It  appears  by 
the  transcript  that  the  constable  testified  that  the  parties  acknowl- 
edged their  signatures  to  it,  and  he  told  them  he  would  put  the 
seals  to  it  afterwards.     It  was  not,  then,  a  bail-bond  when  exe- 
cuted.    It  was  defective,  and  the  fixing  the  seals  afterwards  was 
altogether  improper. 

2.  The  constable  who  took  the  bond  was  sworn.     He  is  said 
to  have  been  interested,  but  I  do  not  perceive  how  it  can  l»e 
avoided  to  swear  him,  in  such  cases,  whatever  may  be  his  inter- 
est.    He  is,  like  an  agent,  a  witness  ex  necessitate. 

3.  It  is  said  that  the  defendant  did  appear  according  to  the 
bond,  and,  therefore,  it  was  not  broken.     Here  we  get  into  an 
inquiry  into  the  merits  in  a  way  not  very  easy  to  be  reconciled 

(a)  See  Su/ern  v.  Butter,  4  C.  E.  Or.  *09. 

(b)  Day  v.  Hall,  7  Hal.  S04  ;  Qraectn  v.  Allen,  g  Or.  74;  see  Bunting  ad*. 
Allen,  S  Harr.  299. 

(c)  Baird  v.  Cole,  Hal  Dig.  1*S  \  S ;  Oliver  v.  Howell,  ante  581 ;  but  see 
Qraeeen  v.  Allen,  2  Or.  77. 

*811 


952  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Smalley  v.  Vanorden. 


to  the  course  of  proceeding  on  certiorari.  But  we  will  look  at 
it.  The  bond  was  to  appear  before  Justice  Latourette.  Justice 
Latourette's  docket  says  that  the  defendant  appeared  at  the  time 
stated  in  the  bond ;  that  the  plaintiff  gave  a  note  of  hand  in 
evidence,  and  the  defendant  acknowledged  the  justness  of  the 
demand,  and  he  gave  judgment  &c.  This  transcript  would, 
therefore,  seem  to  show  that  the  defendant  had  not  broken  his 
bond ;  but  this  court  admitted  affidavits  to  be  taken,  and  by  them 
it  appears  that  while  the  justice  was  filling  up  an  execution,  and 
while  the  constable  was  not  observing  Smalley,  he  left  the  room 
and  ran  off;  and,  therefore,  it  is  argued  that  his  bond  was 
broken. 

The  first  act  on  this  subject  (Bloom.  54)  required  the  defend- 
ant to  be  taken  before  the  justice  &c.,  and  give  security  to  an- 
swer the  action  in  the  form  of  a  common  recognizance  of  bail ; 
that  if  he  did  not  appear,  or  if  he  was  condemned  in  the  action, 
he  should  pay  the  costs  and  condemnation  money,  or  surrender 
himself  up  to  the  constable,  on  execution  to  be  thereafter  issued 
against  him  on  the  day  judgment  shall  be  obtained;  and  if 
he  fail  &c.  But  the  law  was  afterwards  altered  and  the  con- 
stable permitted  to  take  a  bond  for  the  appearance  of  defendant 
at  a  given  day.  This  bond,  in  its  terms,  does  not  follow  the 
recog*nizance  formerly  taken  by  the  justice.  It  is  merely  that 
the  defendant  shall  appear  &c.,  and  answer  unto  the  complaint 
of  said  plaintiff;  then  the  bond  to  be  void.  Now,  it  appears  to 
me  that  this  defendant  did  appear  and  answer.  He  did  every- 
thing which  he  could  be  required  to  do.  Judgment  was  ren- 
dered upon  his  answer,  and  the  execution  was,  in  part,  filled  up. 

If  the  law  intended  to  compel  him  to  abide  longer,  and  to 
surrender  himself  at  any  time  on  the  judgment,  it  would  not  have 
required  the  constable  to  be  there  to  secure  and  take  him  in 
custody.  The  bond  would  have  been  sufficient  security. 

Judgment  reversed. 
*812 


2  SOUTH.]          FEBRUARY  TERM,  1820.  953 

Ayres  t.  Swayze. 


SELAS  C.  AYRES  and  LEWIS  THOMPSON  v.  BENJAMIN 
SWAYZE. 

1.  Contract  to  exchange  execution  for  goods  may  be  enforced. 

2.  Service  of  summons  on  one  defendant,  (a) 

•3.  Appearance  of  attorney  for  defendant  cares  the  defect  (6) 


On  certiorari. 

For  case,  see  opinion. 

SOUTHARD,  J. 

The  case  set  out  in  the  state  of  demand  is  as  follows :  Ayres 
and  Thompson  had  obtained  an  execution  against  Joseph  Hoover 
for  $62.62,  and  while  it  was  yet  in  force  and  unsatisfied  they 
agreed  to  transfer  it  to  Swayze  if  he  would  deliver  them  one 
hundred  and  ten  bushels  of  oats.  He  delivered  the  oats  accord- 
ing to  the  agreement  and  they  refused  to  transfer  the  execution. 
Upon  this  case  there  was  trial,  verdict  and  judgment  for  $70, 
and  the  plaintiffs  in  certiorari  allege  that  this  judgment  ought  to 
be  reversed  because  the  state  of  demand  contains  no  lawful  cause 
of  action,  inasmuch  as  the  execution  could  not  legally  be  trans- 
ferred, and  therefore  the  promise  was  not  binding.  But  I  do 
not  perceive  any  difficulty  in  the  case.  It  was  lawful  for  Swayze 
to  sell  the  oats  ;  it  was  lawful  for  Ayres  and  Thompson  to  pay 
him  either  in  money  or  what  to  him  would  have  been  equivalent. 
The  right  of  receiving  the  money  upon  this  fieri  facias,  or  of 
directing  the  officer  in  executing  it,  might  have  been  of  great 
value  to  the  plaintiff  below,  at  least  equal  to  his  oats.  And 
although  there  might  have  been  a  legal  difficulty  in  their  trans- 
fa)  Budd  v.  Marvin,  1  South.  *48  (a) ;  Mural  y.  Hutchinto*,  1  Harr.  tf. 
(6)  Stediford  v.  Ferris,  1  South.  109  (a) ;  Cole  v.  William*,  Ptnn.  *558 ;  Me- 
Kelwny  ads.  Jones,  £  Hivrr.  S45 ;  HiUman  v.  Harden,  ante  575 ;  Steward  v. 

Sears,  7  Vr.  175; v.  CbmpbeU,  Ooze  92;  Houghton  v.  Potter,  3  Zab. 

338;  Hunt  v.  Allen,  2  Zab.  533;  Snedcker  v   Quick,  6  Hal.  181. 


954  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Hamilton  ».  Decker. 


ferring  the  execution  to  him,  so  that  he  could  maintain  a  suit 
founded  on  it,  yet  there  was  no  legal  difficulty  in  their  trans- 
ferring their  right  to  receive  the  money  made  upon  it,  which  is 
all  *that  I  understand  is  alleged  by  the  case.  I  therefore  see  no- 
defect  in  the  demand. 

The  plaintiffs  in  certiorari  also  rely  upon  the  illegal  service  of 
the  summons,  inasmuch  as  the  constable  returns  it  "  served  on 
the  defendant  by  his  reading  it  himself  and  no  copy  demanded." 
But  although  this  service  might  have  been  questioned  where 
there  were  two  defendants,  yet  the  defect,  if  any,  is  cured  by  the 
subsequent  appearance  of  the  defendants,  by  one  of  the  attorneys 
of  this  court,  his  taking  no  notice  of  the  defect  but  proceeding  to 
the  trial. 

Judgment  affirmed. 


HAMILTON  and  EDSALL  v.  DECKER,  (a) 
On  certiorari. 

State  of  demand  in  the  usual  form  in  trespass  for  taking  per- 
sonal property.  At  the  trial  the  defendants  below  offered  an 
execution  against  one  Allingham,  and  which  had  been  delivered 
to  one  of  them  as  a  constable,  as  evidence  to  justify  taking  the 
property.  This  execution  was  rejected.  And  Halsey  now  as- 
signed its  rejection  as  cause  of  reversal.  Vroom  replied  that  it 
was  incompetent  until  legalized  by  the  production  of  a  judg- 
ment. 1  Ld.  Ray.  733;  5  Burr.  2631. 

The  court  affirmed  the  judgment. 

(a)  Cosher  v.  Peterson,  1  South.  318  (a) ;  Sordine  v.  Combs,  3  Or.  412. 

*813 


2  SOUTH.]          FEBRUARY  TERM,  1820.  955 

Hunt  v.  Young. 


BENJAMIN  V.  HUNT  v.  PETER  YOUNG. 

1.  That  defendant  rented  of  plaintiff  &c.,  good  in  a  demand,  without  setting 
out  the  use  and  occupation,  (a) 

2.  If  transcript  states  that  plaintiff  was  called  it  will  not  be  cause  of  rever- 
sal if  it  does  not  add  that  he  appeared. 

On  certiorari. 

The  facts  sufficiently  appear  in  the  opinions.  Ewing,  for 
plaintiff,  relied  on  two  reasons.  1.  The  insufficiency  of  the  state 
of  demand.  2.  That  the  transcript  did  not  state  that  the  plain- 
tiff appeared  when  the  verdict  was  rendered ;  it  merely  stated 
that  the  plaintiff  was  called. 

KIRKPATRICK,  C.  J. 

The  plaintiff  states  in  his  demand  that  the  defendant  rented 
of  him  a  certain  house  for  the  term  of  one  year,  at  the  rate  of 
$15  by  the  year.  It  is  objected  *that  this  state  of  demand  is  not 
sufficient,  because  the  plaintiff  does  not  expressly  allege  that  the 
defendant  occupied  and  enjoyed  the  same  during  the  said  term, 
for  that  the  debt  arises  upon  the  occupation.  But  this  is  not  so  ; 
the  debt  arises  upon  the  contract  where  the  contract  is  express, 
and  even  if  that  were  not  so  clearly  proved,  to  rent  for  a  year, 
in  common  parlance,  signifies  to  hold  and  occupy  for  that  time 
under  rent,  and  therefore  would  be  well  enough.  The  form  of 
declarations  in  the  upper  courts,  it  is  true,  is  more  particular, 
but  it  would  be  going  too  far  to  insist  upon  it  here. 

Let  the  judgment  be  affirmed. 

SOUTHARD,  J. 

The  state  of  demand  claims  "  $15,  for  this,  that  the  defendant 

(a)  Birckhead  v.  Cummin*,  4  Vr.  44.  When  action  for  use  and  occupation 
will  lie,  Perrine  v.  Hanirinson,  6  Hal.  181;  Conover  v.  Cbnover,  Sax.  40S  ; 
Chambers  v.  Rota,  1  Dutch.  29S  ;  Holmes  v.  Stockton,  *  Dutch.  9S  ;  Stewart  v. 
Fitch,  2  Vr.  17  ;  Andrews  v.  Andrews,  f  Or.  141 ;  Brewer  v.  Oonover,  3  Harr. 
£14  ;  Van  Slnrcom  v.  Kip,  2  Dutch.  S51. 

*814 


956  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

— i 

Hunt  v.  Young. 

rented  a  certain  house  of  him,  the  plaintiff,  for  a  school-house,  for 
the  term  of  one  year,  commencing  the  1st  of  April,  1817,  for 
the  sum  of  $15,  which  the  plaintiff  oftentimes  demanded  of  the 
defendant,  but  he  always  refused "  &c.  There  was  a  trial  by 
jury,  and  the  transcript  states  that  when  the  jury  returned  into 
•court  with  their  verdict  the  plaintiff  was  called,  but  it  does  not 
state  that  the  plaintiff  appeared.  The  verdict  was  received  and 
recorded  and  judgment  rendered  for  $9. 

Two  reasons  have  been  filed  and  relied  on  for  the  reversal  of 
the  judgment.  1.  That  the  state  of  demand  contains  no  lawful 
•cause  of  action ;  the  renting  or  letting  the  house  without  occu- 
pation or  enjoyment  not  giving  a  right  of  action ;  the  occupa- 
tion or  enjoyment  ought,  therefore,  to  have  been  expressly 
averred. 

2.  It  does  not  appear  that  the  plaintiff  was  present  when  the 
verdict  was  rendered. 

Upon  the  first  reason.  In  a  declaration  for  rent  reserved  by 
deed,  the  plaintiff  need  not  state  his  deed,  but  may  declare  gen- 
erally and  produce  the  deed  in  evidence  in  support  of  his  declara- 
tion. 1  Saun.  202,  276,  325;  Ld.  Ray.  1503.  If,  therefore, 
this  was  a  case  of  renting  by  lease  under  seal,  the  objection  that 
the  written  lease  was  not  set  out  would  not  avail.  But  there  is 
nothing  in  the  recoid  to  show  that  it  was  by  written  lease;  it 
appears  to  have  been  by  parol.  It  is  further  to  be  remarked 
that  it  is  not  an  action  for  damages  resulting  from  the  breach  of 
a  contract  or  agreement  to  lease,  but  debt  for  the  amount  of  the 
rent  agreed  upon.  From  what,  then,  does  the  plaintiff's  right 
to  this  specific  sum  arise  ?  Not  alone  from  the  agreement  to 
rent  *the  premises,  but  from  the  use  and  enjoyment  of  them. 
2  El.  Com.  144-  This  use  and  enjoyment  ought,  therefore,  to 
be  stated  as  an  essential  part  of  the  foundation  on  which  the 
plaintiff's  right  of  action  is  built.  And  so  are  the  approved 
forms  upon  parol  leases  for  rent.  1  Chit.  8,  9.  So,  too,  are  the 
forms  for  rent  by  deed.  The  allegation  of  enjoyment  precedes 
the  per  quod  actio  accrevit.  1  Chit.  173.  This  seems  to  me, 
therefore,  to  be  a  substantial  defect. 

Upon  the  second  reason.     The  statute  requires  the  justice  to 

*815 


2  SOUTH.]          FEBRUARY  TERM,  1820.  957 

Angus  v.  Radio. 

enter  in  his  docket  "  all  the  proceedings  before  him  had  touching 
the  suit."  The  appearance  of  the  plaintiff  is  a  necessary  pro- 
ceeding to  authorize  the  justice  to  receive  the  verdict.  Without 
it,  a  nonsuit  must  be  entered.  This  appearance,  therefore,  ought 
to  be  manifested  by  the  record.  Upon  the  same  ground,  the 
court  decided  in  Penn.  632,  74®,  that  it  must  appear,  by  the 
transcript,  that  the  jury  was  sworn.  I  cannot,  therefore,  sustain 
the  judgment. 

Judgment  affirmed. 


WILLIAM  ANGUS  v.  WILLIAM  RADEN. 

1.  No  reversal  fur  a  fact  about  which  there  was  contradictory  evidence,  (a) 

2.  If  oxen  break  plaintiff's  close  and  kill  his  cow,  owner  is  answerable 
without  proving  that  he  knew  they  were  accustomed  to  gore.  (6) 


On  certiorari. 

The  case  is  stated  in  the  opinion.  The  reasons  relied  on  for 
reversal  were — 1.  That  defendant  was  not  liable  for  the  injury, 
because  the  oxen  which  did  it,  though  in  his  care  and  manage- 
ment, were  not  his  property.  2.  That  the  justice  refused  to  give 
a  legal  charge  to  the  jury  when  requested. 

Halsey,  for  plaintiff. 
Scudder,  for  defendant 

(a)  Romainc  v.  Norris,  S  HaL  80;  Gibbons  v.  Wade,  S  HaL  £55  ;  Baldwin 
v.  Simmons,  4  Hal.  198;  Independence  v.  Pompton,  4  Hal.  909;  Fan  Pelt  v. 
Vtghte,  £  Gr,  £07;  Scott  v.  Beatty,  S  Zab.  £59;  State,  Wilson  \.  Mayor  Ac,,  of 
Hudson,  S  Vr.  S65 ;  Paterson  R.  R.  v.  Ackerman,  4  Zab.  536;  Acts  of  1871 
124,  and  Craft  v.  Smith,  6  Vr.  S0£  ;  Nestal  v.  Schmid,  10  Vr.  688. 

(6)  See  Dills  v.  Kinney,  S  Or.  ISO;  Walts  v.  Ford,  S  Hal.  £67;  Ooze  v. 
Robbins,  4  Hal.  S84  ;  Chambers  v.  Matthews,  S  Harr.  S6S  ;  Vandegrifl  v.  Redi- 
ker,  S  Zab.  185 ;  Price  v.  N.  J.R.B.,*  Vr.  ££9,  S  Vr.  19  ;  Nix.  Dig.  23  {  66. 


958  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Angus  v.  Badin. 

SOUTHARD,  J. 

Two  questions  seem  to  have  been  raised  in  this  case.  It  is,  in 
the  first  place,  alleged  that  the  oxen  which  did  the  injury  com- 
plained of  belonged  to  Decatur  and  Atterbury,  were  in  their 
employment  and  under  the  care  of  the  defendant,  as  the  super- 
intendent of  their  powder  mills ;  and,  therefore,  the  defendant 
could  not,  legally,  be  made  answerable  for  injuries  done  by  them. 
The  evidence  which  is  shown  to  have  been  given,  proving  the 
property  in  Decatur  and  Atterbury,  if  credited  by  the  jury, 
seems  conclusive  of  their  right;  but  the  justice  states  *that  it 
was,  on  the  other  hand,  proved  that  the  defendant  had  acknowl- 
edged that  they  were  his.  The  jury  were  to  judge  upon  this 
contradiction ;  we  have  no  means  of  ascertaining  the  credibility 
of  the  evidence.  We  presume  the  jury  decided  correctly ;  and, 
from  the  verdict,  it  is  probable  that  they  believed  the  oxen  be- 
longed to  the  defendant. 

It  is  alleged,  in  the  second  place,  that  the  court  refused  to 
charge  the  jury  when  legally  required.  Upon  this  point  two 
things  are  worthy  of  remark.  1.  What  was  the  charge  required  ? 
2.  What  was  the  conduct  of  the  court  ?  As  to  the  nature  of  the 
charge  required,  there  seems  to  be  some  difference  between  the 
amended  return  of  the  justice  and  the  affidavit  read  before  the 
court.  I  think  it  proper  to  be  governed,  in  my  view  of  the 
case,  by  the  amended  return.  The  facts  in  dispute  would  cor- 
rectly form  a  part  of  the  record ;  and  the  party  having  chosen, 
in  the  first  place,  to  take  his  rule  upon  the  justice,  ought  to  be 
bound  by  it.  The  justice  states  that  the  defendant  below  "  called 
on  him  to  charge  that  the  defendant's  oxen  had  gored  the  plain- 
tiff's cow,  yet  if  they  were  not  accustomed  so  to  do  the  owner 
was  not  liable  in  law  for  the  injury;  that  here  the  defendant 
was  not  liable,  as  the  injury  was  merely  accidental,  not  inten- 
tional." The  accuracy  of  this  doctrine,  as  applied  to  the  present 
case,  may,  I  think,  be  questioned.  The  owner  of  domestic 
animals,  mansuetae  naturae,  not  necessarily  inclined  to  commit 
mischief,  as  dogs,  horses,  oxen,  cows,  sheep  &c.  is  not  liable  for 
an  injury  committed  by  them,  unless  he  had  notice  of  a  mis- 
chievous propensity  in  the  animal,  or  the  injury  arose  from  some 

*816 


2  SOUTH.]  FEBRUARY  TERM,  1820..  959 

Angus  v.  Radio. 

neglect  on  his  part;  it  being  generally  necessary,  in  an  action  for 
such  injury,  to  allege  and  prove  the  acienter ;  but  it  is  the  duty 
of  the  owner  to  confine  them  on  his  own  land,  and,  if  they  go 
therefrom  and  commit  a  trespass  on  the  land  of  another,  unless 
through  defect  of  fences  which  the  latter  ought  to  repair,  the 
owner  is  liable,  though  he  had  not  knowledge  of  any  evil  pro- 
jK?nsity  in  them.  If  they  unlawfully  break  plaintiff's  close  and 
commit  a  trespass,  the  owner  is  liable  for  the  whole  damage.  IS 
Mod.  833 ;  Ld.  Ray.  608;  Salk.  662 ;  Peake's  EC.  291;  Bac. 
Ab.  "Action  on  the  Case."  Here  the  plaintiff  below  charges,  in 
his  state  of  demand,  that  the  oxen  broke  into  his  enclosure,  and 
there  gored  his  cow  so  as  to  kill  her.  The  defendant  did  not, 
therefore,  confine  them  on  his  own  land ;  they  were  trespassing 
on  the  land  of  the  plaintiff.  The  owner  was,  there* fore,  liable 
for  the  injury  done,  and  it  was  not  necessary  either  to  allege  or 
prove  a  scienter.  And  the  justice  might  well  have  declined 
giving  the  charge  that  was  required.  But  I  do  not  understand 
him  to  have  declined.  After  the  attorney  of  the  defendant  had 
argued  before  the  jury,  and  stated  the  law  to  them  as  he  under- 
stood it,  he  requested  the  court  to  charge  to  the  amount  before 
detailed.  The  justice  replied  that  he  had  no  objection  so  to  do, 
but  did  not  consider  it  necessary.  This  appears  to  me  to  be,  in 
substance,  though  not  in  form,  an  assent  to  the  law,  as  the 
defendant  understood  it,  and  an  indication  to  the  jury  what  the 
court  thought;  a  charge  such  as  was  called  for.  To  reverse, 
therefore,  for  this  reason,  would  be  too  strict  an  adherence  to 
form  to  the  disregard  of  substance,  even  if  the  charge  asked  for 
was  correct. 

Judgment  affirmed. 
*817 


960  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Norris  v.  Douglass. 


NOAH  NORRIS  v.  JAMES  DOUGLASS. 

1.  Presumption  is,  that  attorney  is  authorized  to  bring  suit  in  the  name  of 
plaintiff,  the  contrary  must  be  shown,  (a) 

2.  Style  of  action. 

3.  Copy  of  account. 

On  certiorari. 
Scudder,  for  plaintiff. 

SOUTHARD,  J. 

This  action  is  stated  by  the  justice,  "  James  Douglass,  who 
sues  for  the  use  of  John  Aldns  v.  Noah  Norris"  The  state  of 
demand  is  in  the  following  words : 

"New  York,  September  12th,  1817. 
"  Mr.  Norris,  Dr.,  to  James  Douglass,  the  sum  of  sixty 

feet  of  white  marble,  at  7s.  per  foot,  $52  50 

"  One  hearth  and  two  pieces,  4  50 

$57  00 

"  I  acknowledge  this  to  be  a  just  account. 

"NOAH  NORRIS." 

On  the  back  of  the  account  is  endorsed  "  Pay  to  John  Akins,  or 
order,  the  within  sum.  James  Douglass."  There  was  verdict 
and  judgment  for  $58.66.  The  first  objection  taken  to  the  judg- 
ment is  that  Douglass  lived  in  New  York  and  never  authorized 
A.  Dod,  Esq.,  to  prosecute  said  action  in  his  name  for  the  use  of 
John  Akins  or  any  other  person.  To  this  it  was  answered,  J>e- 
fore  the  justice  where  the  exception  was  first  taken,  and  is  now 
again  answered  here,  that  A.  Dod  is  a  regularly  licensed  *attorney ; 

(a)  Inhabitants  v.  Booraem,  5  Hal.  £57 ;  Hendrickson  v.  Hendrickson,  3  Gr. 
102  ;  McKdway  ads.  Jones,  2  Harr.  345;  Price  ads.  Ward,  1  Dutch.  225  ;  Dare 
v.  Allen,  1  Or.  Oh.  288 ;  Qifford  v.  Thorn,  1  Mock.  70S;  see  Swayze  v.  Ooursen, 
2  Hal.  63;  Potty  v.  Smith,  7  Hal.  139  ;  Bowlsby  v.  Johnston,  1  Gr.  349. 

*818 


2  SOUTH.]          FEBRUARY  TERM,  1820.  961 

Kerr  v.  Phillips. 

that  therefore  the  presumption  is  in  favor  of  his  authority  to 
prosecute  in  the  way  he  does,  and  the  contrary  must  be  shown. 
The  answer  is  sufficient. 

2.  Douglass  could  not  sue  to  the  use  of  Akins.     There  is  no 
difficulty  in  this.     The  account  was  of  a  character  not  to  be  as- 
signed, so  that  the  suit  could  be  brought  in  the  name  of  the  as- 
signee.    It   must  be  brought  in  Douglass's  name,  but  it  was 
proper,  on  the  record,  to  show  who  had  the  real  interest. 

3.  Because  the  account  before  stated  was  admitted  in  evidence. 

That  account  was  the  state  of  demand,  and  it  can  be  consid- 
ered in  no  other  light  than  as  an  account.  It  is  not  a  note  or 
due-bill ;  a  copy  of  it  was  all  that  was  necessary  to  be  filed.  It 
was,  besides,  prima  facie  evidence  to  prove  the  debt.  If  it  had 
appeared  in  any  way  that  it  was  a  copy  of  a  book  account  the 
book  ought  to  have  been  shown,  but  this  not  being  so,  it  seems 
to  me  to  l>e  all  right. 

Judgment  affirmed. 


WILLIAM  F.  KERR  et  al.  v.  MOSES  PHILLIPS. 

1.  Judgment  of  restitution  necessary  in  forcible  entry  and  detainer,  (a) 

2.  Suit  against  persons  who  hold  in  severally.  (6) 


Drake,  for  plaintiff. 

KIRKPATRICK,  C.  J. 

This  is  a  case  of  forcible  detainer,  and  the  principal  reason  as- 
signed for  the  reversal  of  the  judgment  is  that  it  is  irregular,  in- 
formal and  not  according  to  law. 

(a)  State  v.  Covcnhoven,  1  Hal.  S96  ;  Crane  v.  Dod,  Pom.  *S4O ;  AppUgat*  v. 
Applegate,  1  Hear.  SSI ;  Townly  v.  Rittan,  Spm.  605,  1  Zab.  674 ;  »ee  Dariwit 
v.  Schooley,  5  Hal.  148;  Martin  v.  Hiltyer,  6  Hal.  ft. 

(6)  Unedeker  v.  Quick,  7  Hal.  129;  HUderbrand  v.  Linninger,  S  Or.  38 ; 
Boylston  v.  Valentine,  1  Harr.  347  ;  see  Den  v.  Snovkill,  1  Or.  tS. 

61 


962  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Kerr  v.  Phillips. 

After  recording  the  verdict  of  the  jury,  whereby  they  find  the 
defendants  guilty  of  the  unlawful  detainer  complained  of  by  the 
plaintiff,  the  justice  enters  his  judgment  in  these  words  :  "  Where- 
upon I  give  judgment  for  the  plaintiff"  for  the  said  unlawful  de- 
tainer, with  costs  of  suit,  being  treble,  amounting  to  $80.16." 

The  case  of  Waller  v.  Park,  Penn.  661,  is  a  stronger  case  than 
this.  There,  after  recording  the  verdict  of  guilty,  the  justice 
gave  judgment  that  "  Waller,  the  defendant,  is  guilty  of  forcibly 
entering  and  detaining  the  possession  of  the  premises  contained 
and  described  in  the  complaint  of  the  plaintiff,"  and  awards  costs. 
But,  because  there  was  no  judgment  for  restitution,  this  judg- 
ment was  holden  as  none  and  reversed.  In  the  case  of  Cowman 
*v.  Barber,  too  (Penn.  688),  the  judgment  was  that  the  defend- 
ant was  guilty,  but  there  was  no  judgment  that  the  plaintiffs  be 
restored  &c.,  and  therefore  it  was  reversed. 

Perhaps  the  mode  of  proceeding  upon  the  English  statutes  in 
actions  of  forcible  entry  and  detainer,  may  have  led  some  of  the 
justices  into  mistake,  though,  in  this  case,  even  that  has  not  been 
pursued.  There  the  principal  judgment  was  that  the  defendant 
is  convicted,  and  restitution  &c.  followed  as  consequences.  Upon 
these  precedents,  it  is  presumed,  some  of  the  justices  here  have 
been  led,  in  these  cases,  to  give  judgment  that  the  defendant  is 
guilty.  That  was  so  in  the  two  cases  just  cited,  and  it  may  be 
said  to  be  substantially  so  in  the  one  now  before  us.  But  it  is 
to  be  observed  that  those  statutes  are  wholly  different  from  ours 
upon  this  subject.  They  had  different  objects  in  view  and  differ- 
ent modes  of  proceeding  prescribed. 

The  English  statutes  made  a  forcible  detainer  a  criminal 
offence.  The  party  complained  of  might  be  convicted  upon  the 
voice  of  one  or  more  of  the  justices,  or  upon  an  inquisition  taken 
by  the  people  of  the  county.  This  conviction  was  made  a  mat- 
ter of  record,  beginning  with  a  memorandum  stating  all  the  facts 
particularly,  and  closing  with  the  judgment  of  the  justice  there- 
upon, the  imposing  of  the  fine,  the  commitment  of  the  party  and 
the  award  of  restitution.  This  judgment  of  the  justices  was  to 
this  effect  and  somewhat  in  this  form :  "  Therefore,  it  is  con- 
sidered by  u»,  the  justices  aforesaid,  that  the  said  A  JB  of  the  de- 

*819 


2  SOUTH.]          FEBRUARY  TERM,  1820.  063 

Kerr  c.  Phillips. 

4ainer  aforesaid,  with  force  and  strong  hand,  is  convicted  according 
to  the  form  of  the  statute  &c. ;  whereupon  we  "  &c.,  and  then  they 
go  on  to  impose  the  fine,  order  the  arrest  and  commitment  of  the 
defendant  and  restitution  to  be  made.  And  the  warrant  of 
arrest,  commitment  and  writ  of  restitution  went  accordingly. 

This  was  the  course  under  the  British  statutes,  and  a  very 
•easy,  sensible  and  just  course  it  seems  to  have  been.  Our  legis- 
lature, however,  although  they  still  declare  it  to  be  unlawful  to 
make  such  detainer  with  force  and  strong  hand,  yet  have  altered 
the  whole  course  of  proceeding  upon  it,  and  instead  of  consider- 
ing it  as  a  criminal  offence  have  converted  it  into  a  mere  private 
injury.  There  is  no  conviction  upon  view,  no  grand  inquest  to 
make  inquisition,  no  fine,  no  arrest,  no  commitment.  There  is 
nothing  in  the  nature  of  a  criminal  proceeding.  It  is  a  mere 
trial  *of  private  right  between  the  parties.  If  the  plaintiff"  pre- 
vails in  this  trial,  the  whole  object  of  the  law  is  that  he  shall 
have  restitution  of  his  land,  and  for  this  the  judgment  must  be 
rendered. 

If  the  jury  find  the  defendant  guilty,  the  act  says  the  justice 
shall  record  their  verdict  and  give  judgment  thereon.  What  judg- 
ment ?  Judgment  for  the  plaintiff  for  the  unlawful  detainer  f 
What  does  the  plaintiff  get  by  that  ?  It  awards  him  nothing ; 
it  determines  no  right.  No,  the  judgment  must  be  that  the 
plaintiff  be  restored  to  the  possession  of  his  land  thus  unlawfully 
detained  from  him. 

It  is  true  that  in  this  case  the  justice  has  awarded  a  writ  of 
restitution,  but  the  objection  is  that  there  is  no  judgment  to  sup- 
port such  award.  The  mere  verdict  of  a  jury  and  the  receiving 
and  recording  of  it  by  the  court,  do  not  warrant  the  issuing  of 
tin  execution.  The  court  must  first  pass  upon  it  and  pronounce 
the  judgment  of  the  law  upon  it. 

It  is  certainly  matter  of  great  regret  that  after  a  litigation  so 
expensive,  and  a  verdict,  no  doubt,  so  just,  the  whole  proceeding 
should  be  set  aside  and  the  party  lose  his  right ;  but  if  we  are  to 
be  governed  either  by  precedent  or  principle,  this  judgment  can- 
not prevail. 

Let  the  judgment  be  reversed. 

*820 


964  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Clawson  v.  Gustin. 


SOUTHAKD,  J. 

I  think  it  is  also  manifest  from  the  papers  that  the  defendants 
held  the  lands  in  severalty,  not  as  joint  tenants  or  tenants  in 
common.  The  justice  could  not  therefore  unite  them  all  in  one- 
action.  The  judgment,  too,  is  for  the  costs  of  both  plaintiff  and 
defendant,  which  is  error  and  cause  of  reversal,  so  far  as  relates 
to  those  costs,  which  ought  not  to  have  been  given. 

Judgment  reversed. 

After  the  judgment  was  pronounced  the  attorney-general 
moved  that  a  writ  of  re-restitution  issue  to  restore  the  defendants 
below  to  the  possession  of  the  premises ;  and  as  it  appeared  by 
the  record  of  the  justice  that  a  writ  of  restitution  had  been 
issued  in  favor  of  the  plaintiff  below,  the  court  ordered  the  writ 
of  restitution. 


*  J.  CLAWSON  and  A.  CLAWSON  v.  D.  GUSTIN. 

A  blank  endorsement,  though  after  day  of  payment,  can  only  be  filled  up  in. 
the  usual  form,  (a) 

The  action  was  on  a  promissory  note  against  the  endorser. 
The  state  of  demand  alleged  the  assignment  to  be  made  after  the 
day  of  payment,  and  that  the  defendant  made  a  special  promise 
to  pay  if  the  money  could  not  be  got  of  the  drawer.  The  case 
was  argued  by  Vroom,  for  plaintiff,  and  Halsey,  for  defendant. 

Opinion  of  the  court.  x 

KlBKPATRICK,  C.  J. 

The  plaintiff  below  brings  this  action  upon  a  note  of  hand 
made  by  one  James  Stewart  to  Jacob  Clawson,  alleging  that 

(a)  Snyder  v.  Hummel,  Perm.  *88 ;  Biker  v.  Corley,  Penn.  *911 ;  Crozer  v. 
Chambers,  Spen.  256  ;  Crisman  v.  Suriaher,  4  Dutch.  149  ;  Watkins  v.  Kirkpatrick^ 
2  Dutch.  84;  Chaddock  v.  Vanness,  6  Vr.  517. 

*821 


SOUTH.]  FEBRUARY  TERM,  1820.  965 


Clawson  v.  Uustin. 


•Clawson  assigned  it  to  one  Robert  Thomson  in  these  words,  to 
wit :  "  For  value  rec'd  I  assign  this  note  to  Rob't  Thomson,  and 
stand  security  till  paid,"  and  that  Robert  Thomson  afterwards 
assigned  it  to  the  said  plaintiff  in  these  words,  to  wit :  "  I  assign 
the  within  note  to  David  Gustin,  and  don't  stand  security  if 
never  paid."  It  turned  out  upon  the  trial,  by  the  confession  of 
Gustin  himself,  that  Clawson  had  endorsed  the  note  in  blank, 
and  that  he,  Gustin,  after  it  came  into  his  hands,  had  written 
over  his  name  the  above  special  assignment,  with  warranty. 

It  is  true  that  the  mere  endorsement  of  the  name  on  negotiable 
paper  is  sufficient,  and  the  assignee  may  fill  up  the  assignment  in 
the  usual  form,  but  he  can  do  no  more ;  he  can  insert  no  special 
covenant  or  undertaking,  because,  in  the  course  of  business,  the 
endorsement  imports  none  such  ;  and  if  he  do  so,  not  only  is  the 
assignment  void  but  he  also  is  guilty,  if  not  of  a  direct  forgery, 
yet  of  a  fraudulent  attempt,  upon  which  the  law  frowns,  and 
which  conveys  to  him  no  interest. 

The  judgment  intended  to  be  brought  up  by  this  certiorari 
seems  to  be  that  which  was  entered  against  the  defendant,  Jacob 
Clawson,  and  his  bail ;  but  as  the  justice  has  sent  up,  also,  the 
original  judgment  against  Clawson  himself,  and  that  appears  to 
be  founded  upon  fraud,  if  not  forgery,  let  it  be  reversed  and  the 
"whole  proceeding  founded  upon  it  be  set  aside. 

SOUTHARD,  J. 

I  agree  to  reverse.  It  appears  by  the  papers  that  the  special 
Assignment,  written  by  Gustin  over  Clawson's  *name,  was  totally 
unauthorized  by  Clawson ;  that  this  special  assignment  was 
necessary  to  bind  Clawson  to  pay,  the  law  not  having  been  com- 
plied with  so  as  to  bind  an  endorser ;  and  that  although  there 
was  a  special  promise  to  pay,  laid  both  before  and  after  the 
.assignment,  provided  he  could  not  get  the  money  of  the  maker, 
yet  there  was  no  proof  of  any  effort  to  get  the  money  of  the 
maker  nor  of  the  promise  as  laid. 

Judgment  reversed. 
*822 


966  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Van  Giesen  t.  Van  Houten. 


JOHN  MATHEWS  v.  THOMAS  FERGUSON. 

Justice  has  jurisdiction  of  action  for  malicious  prosecution,  (a) 

On  certiorari. 

L.  Q.  C.  Elmer,  attorney. 

SOUTHARD,  J. 

There  is  no  cause  of  reversal.  It  is  an  action  for  malicious 
pi^osecution  commenced  by  warrant ;  and  the  state  of  demand  is 
technically  drawn,  containing  everything  requisite  in  such  a 
case ;  and  as  there  were  several  witnesses  sworn,  it  is  to  be  pre- 
sumed that  the  demand  was  supported  by  proof.  Of  such  a 
cause  the  justice  had  jurisdiction,  and  there  seems  no  error  in 
the  proceedings. 

Judgment  affirmed. 


CORNELIUS  VAN  GIESEN  v.  GARRABRANT  VAN  HOUTEN. 

No  e  not  paid  at  the  day,  interest  must  be  added,  and,  if  it  amount  to  more 
than  $100,  justice  has  not  jurisdiction.  (b) 


On  certiorari. 

KlRKPATRICK,  C.  J. 

This  is  an  action  upon  a  note  of  hand,  made  by  the  defendant, 
Van  Giesen,  to  one  Marselis  Van  Giesen  for  $100,  dated  May 

(a)  Potts  v.  Imlay,  1  South.  330  (a). 

(6)  La  Rue  v.  Boughaner,  1  South.  104  (b) ',  Williams  v.  Hamilton,  1  South* 
220  (b) ;  Griffith  v.  Clute,  4  Hal.  264  ;  Howell  v.  Burnett,  Spen.  265  ;  Inhabitant* 
of  Saddle  River  v.  Col/ax,  1  Hal.  115. 


2  SOUTH.]  FEBRUARY  TERM,  1820.  967 


Wier  v.  Luin. 


24th,  1816,  and  payable  in  sixty  days,  and  by  the  said  Marselis 
Van  Giesen  assigned  to  the  plaintiff,  Van  Houten.  The  action 
was  instituted  March  22d,  1817,  and  the  defendant  insisted, 
before  the  justice,  that  the  principal  and  interest  of  the  said  note 
amounted  to  more  than  $100,  and,  there  being  no  credits  allowed, 
plead  to  the  jurisdiction  of  the  court. 

According  to  the  course  of  decision  here  this  was  a  good  plea. 
The  justice  ought  to  have  given  judgment  upon  it  for  the  de- 
fendant, and  to  have  dismissed  the  suit. 

Reversed. 


*SAMUEL  WIER  and  WILLIAM  WIER,  surviving  administrators 
of  WILLIAM  WIER,  deceased,  v.  DANIEL  LUM. 

1.  Judgment  for  more  than  distributive  share. 

2.  Suit  before  orphans  court  had  ordered  distribution,  (a) 

On  certiorari. 

SOUTHARD,  J. 

The  state  of  demand  claims  $100,  and  sets  out  that  William 
Wier,  of  Washington,  Morris  county,  died  in  December,  1816, 
possessed  of  certain  personal  estate.;  that  the  defendants,  together 
with  the  widow,  Elizabeth  Wier,  became  the  administrators,  and 
took  possession  of  the  property  ;  that  the  widow  died  in  July, 
1818;  that  in  September,  1818,  the  defendants  reported  to  the 
orphans  court  of  Morris  county  that  there  remained  in  their 
hands,  to  be  disposed  of  according  to  law,  $1,044,59.5;  that 

(a)  Ordinary  v.  Smith,  5  Or.  3£ ;  Ordinary  v.  Cbolcy,  1  Vr.  f71 ;  Ordinary 
v.  Barcalaw,  7  Vr.  15;  King  v.  Berry,  *  Or.  Ch.  261;  Dtlanry  v.  AoWe,  t  Or. 
Ck.  441 ;  Exion  v.  ZuLe,  1  McCdrt.  501;  Prey  v.  Dtmarat,  1  C.  E.  Or.  tS6  ; 
Bockover  v.  Ayrc*,  7  C.  E.  Or.  16;  Dorsheimer  v.  Rorback,  8  C.  K  Or.  47  ; 
Adminintration  Bond  of  Green,  4  Hal.  Ck.  550  ;  Woodruff  v.  Woodruff,  1  Stmlk. 
S75  (b). 

*823 


968  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Wier  v.  Lum. 


inasmuch  as  Effie  Lum,  late  Effie  Wier,  was  one  of  the  daughters 
of  the  deceased,  and  married  to  the  plaintiff,  "  is  entitled  to  a 
distributive  share  of  the  estate,  that  is,  the  movable  estate  of  the 
said  William  Wier,  deceased,  and  from  the  balance  so  reported 
to  be  in  the  hands  of  the  defendant,  the  plaintiff  is  entitled  to 
demand  of  them  as  his  distributive  share,  $100 ;  that  the  plaintiff 
had  executed  to  the  defendants  a  bond  with  sufficient  freehold 
security,  in  double  the  sum  demanded,  to  refund  and  pay  back 
to  the  defendants  the  ratable  share  &c.,  bearing  date  the  22d  of 
January,  1819,  and  produced  before  the  court;  that  the  plaintiff 
had  also  executed  a  release  for  the  said  $100,  in  full  of  said  dis- 
tributive share,  dated  the  22d  of  January,  1819;  which  bond 
and  release  were  duly  tendered,  and  the  money  demanded  on  the 
said  22d  of  January,  1819,  but  refused,  whereby"  &c. 

At  the  trial  the  plaintiff  gave  in  evidence  a  certificate  from  the 
surrogate  to  prove  that  defendants  were  administrators  of  Wil- 
liam Wier,  deceased.  He  also  proved  the  execution,  reading 
and  tender  of  the  bonds  and  release  to  one  of  the  defendants. 
The  defendant  then  moved  for  a  nonsuit,  because  they  were  not 
tendered  to  both  of  the  defendants,  which  motion  was  overruled. 
Plaintiff  then  produced  a  certified  copy  of  the  account  of  defend- 
ants, as  audited  and  stated  by  the  surrogate,  and  allowed  by  the 
court,  showing  the  balance  as  stated  in  the  plaintiff's  state  of 
demand,  and  proved  that  the  intestate  left  eleven  children,  of 
whom  plaintiff's  wife  was  one.  The  jury  found  a  verdict  for 
$98.48.  The  trial  and  judgment  were  on  the  30th  of  March, 
1819. 

*From  this  statement  it  is  manifest  that  the  verdict  and  judg- 
ment are  for  the  eleventh  part  of  the  balance  stated  by  the  de- 
fendant's account,  with  interest  from  the  time  the  account  was 
allowed  by  the  court  until  the  judgment.  In  this  I  think  there 
is  manifest  error.  William  Wier,  the  intestate,  left  a  widow  and 
children.  By  our  statute  of  distribution  of  intestate's  estate, 
where  that  is  the  case,  the  widow  is  entitled  to  one-third.  This 
plaintiff  could  not,  therefore,  be  entitled  to  more  than  the  one- 
eleventh  of  two-thirds  of  his  estate.  The  recovery  has  been  for 
one-third,  or  $32.82f  too  much.  It  is  true  the  widow  is  dead, 

*824 


2  SOUTH.]          FEBRUARY  TERM,  1820.  969 


Wier  v.  Lam. 


and  this  child  may  be  entitled  to  a  share  of  her  estate.  But  it  is 
initially  true  that  she  may  not  be  entitled  to  one-eleventh  part. 
She  may  not  be  one  of  eleven  children  of  hers,  though  she  was 
one  of  eleven  children  of  William  Wier.  It  may  also  be  equally 
true  that  the  widow  may  have  had  debts  which  would  have 
diminished  her  estate  so  that  she  did  not  leave  the  whole  one- 
third  part  to  be  divided.  But  if  neither  of  these  be  true,  if  the 
whole  one-third  was  left  to  be  divided  among  the  same  eleven 
children,  still  they  claim  it  as  her  children,  not  the  children  of 
William  Wier.  They  cannot  recover  it  in  an  action  against  Wil- 
liam Wier's  administrators,  one  of  whom  was  this  very  widow, 
while  she  was  living. 

Judgment  reversed. 

SOUTHARD,  J.,  further  remarked :  I  think  there  is  a  radical 
<lefect  in  these  proceedings.  The  foundation  of  the  plaintiff's 
right  to  recover  rests  on  our  statute  for  distribution  of  intestates' 
states.  And  by  the  twelfth  section  of  that  statute  (Pat.  156) 
the  judges  of  the  orphans  court  are  to  decree  distribution  of 
the  estate  pursuant  to  law,  after  which  the  persons  claiming  a 
share  shall  have  their  remedy  at  law  against  the  executors  or  ad- 
ministrators. By  the  construction  of  this  statute  the  court  is  to 
fix  the  distributive  share ;  they  and  not  a  jury  are  to  determine 
who  are  entitled  to  portions  of  the  estate  and  what  those  portion* 
are.  The  consequences  of  submitting  such  questions  to  a  jury 
would  be  fatal  to  the  rights  of  administrators.  I  think,  there- 
fore, that  this  action  could  not,  in  the  present  instance,  be  sus- 
tained by  the  plaintiff. 


970  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Lawrence  v.  Jones. 


*DANIEL  LAWRENCE  v.  JOHN  S.  JONES,  constable. 

1.  Action  by  constable  for  being  prevented  from  taking  defendant  in  execu- 
tion, (a) 

2.  Evidence. 


On  certiorari. 

The  facts  and  reasons  appear  in  the  opinions.  H.  A.  Ford? 
attorney. 

KlRKPATRICK,  C.  J. 

The  constable,  in  his  state  of  demand,  sets  forth  that  he  had 
certain  executions  in  his  hands  against  one  Samuel  T.  Lawrence 
and  that  this  Daniel  Lawrence  prevented  him  from  taking  his 
body  upon  these  executions.  If  this  were  so  it  subjected  him  to- 
a  criminal  prosecution  and  also  to  actions  at  the  suit  of  the  plain- 
tiffs in  these  executions,  respectively,  but  it  gives  the  constable 
no  action  unless  it  be  for  his  own  direct  and  personal  injury. 
He  cannot  lump  it  in  this  way  and  become  the  general  avenger 
of  other  men's  wrongs.  His  giving  his  notes  to  those  persons 
for  the  money  due  upon  their  executions  does  not  help  him.  No 
man,  and  especially  an  officer  of  the  peace,  can  buy  up  other 
men's  quarrels.  There  are  sundry  other  substantial  reasons  for 
reversal,  but  I  rest  upon  this  alone. 

SOUTHARD,  J. 

The  state  of  demand  sets  out  that  the  plaintiff  is  one  of  the 
constables  of  Morris  county;  that  C.  A.  Pitney,  on  the  23d  of 
December,  1817,  before  D.  Day,  Esq.,  obtained  a  judgment 
against  S.  T.  Lawrence  for  $43.15  debt  and  sixty-three  cents 
costs ;  that  an  execution  was  issued  upon  the  judgment  on  the 
10th  of  March,  1818,  directed  to  the  plaintiff  as  one  of  the  con- 
stables &c.,  by  means  whereof  a  right  accrued  to  the  plaintiff  to 

(a)  See  Leonard  v.  Ware,  1  South.  150  (b) ;  Lloyd  v.  Wyckof,  6  Hal.  226. 

*825 


2  SOUTH.]          FEBRUARY  TERM,  1820.  971 


Lawrence  r.  Jonea. 


seize,  arrest  and  take  the  body  of  said  S.  T.  Lawrence ;  that  in 
the  lawful  exercise  of  that  right  he  was  obstructed  and  hindered 
and  molested  and  altogether  prevented  by  the  defendant,  and  by 
such  obstruction  &c.  the  plaintiff  was  totally  unable  to  seize, 
arrest  and  take  the  body  of  S.  T.  Lawrence,  and  he  escaped  suc-h 
rightful  seizure,  viz.,  on  the  22d  of  January,  1819.  The  plain- 
tiff also  complains  that  on  the  20th  of  January,  1818,  Justice 
Day  gave  judgment  against  the  same  S.  T.  Lawrence  in  favor  of  E. 
Byrara  and  N.  Wilson  for  $25.25  debt  and  fifty-three  cents  coster 
and  on  the  22d  of  January,  1819,  issued  an  execution  directed 
to  the  plaintiff  and  that  he  was  in  like  manner  obstructed  &c.r 
by  which  hindrance  &c.  he  was  endamaged  $90. 

*This  suit  was  commenced  12th  of  February,  1819,  and  tried 
27th  of  February,  1819.  At  the  trial  a  motion  for  a  nonsuit 
was  made  because  the  executions,  as  stated  by  the  plaintiff,  did 
not  authorize  the  arrest  of  S.  T.  Lawrence,  and  the  motion  was 
overruled.  Plaintiff  proved  the  handwriting  of  C.  A.  Pitney 
to  a  receipt,  and  the  receipt  was  admitted ;  both  the  receipt  and 
mode  of  proof  being  objected  to.  This  receipt  was  in  the  fol- 
lowing words :  "  Rec'd  of  John  S.  Jones,  const,  his  note  for 
forty-seven  dollars  and  twenty-five  cents ;  when  pd.  will  be  in 
full  of  an  execution  he  has  in  my  favr.  agt.  Samuel  T.  Lawrence. 
Dated  10  March,  1818.  Feby.  27th,  1819.  Chs.  A.  Pitney." 
Plaintiff  then  offered  Elias  Byram,  one  of  the  firm  of  Byram  & 
Wilson,  to  prove  that  he  had  satisfied  them  for  their  demand 
against  S.  T.  Lawrence  for  their  execution.  This  evidence  was 
objected  to  on  the  ground  of  the  witness'  interest  in  the  suit ; 
but  the  justice  swore  the  witness  on  his  voir  dire,  and  he  deny- 
ing any  interest,  was  sworn.  There  was  also  produced  a  receipt, 
but  how  proved  does  not  appear,  given  by  Byram  &  Wilson  for 
their  execution  in  the  same  form  as  that  of  Pitney,  and  dated 
27th  of  February,  1819,  the  day  of  the  trial.  There  was  a 
verdict  and  judgment  for  $75.19. 

To  the  sufficiency  of  this  judgment  several  objections  have 
been  taken.  I  will  state  a  part  of  them  only  in  the  view  which 
I  take  of  the  case. 

The  complaint  here  is  that  the  officer  was  obstructed   in   the 

*826 


972  NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Lawrence  t-.  Jones. 


lawful  right  to  take  the  body  of  the  defendant,  and  thus  the 
defendant  escaped.  The  first  inquiry  is,  Had  he  any  such  lawful 
right  to  take  the  body  ?  I  think  it  manifest  he  had  not. 

Pitney 's  execution  was  issued  10th  of  March,  1818 ;  the  ob- 
struction was  on  the  22d  of  January,  1819.  The  constable  had 
no  right  to  take  the  body  on  such  execution.  The  defendant 
might  well  have  resisted  him ;  he  was  himself  a  trespasser  and 
a  fit  subject  of  punishment.  His  improper  conduct  ought  not 
to  be  rewarded  by  a  verdict,  giving  him  all  the  money  due  on 
the  execution.  The  same  remarks  apply  to  the  other  execution. 
The  judgment  was  given  on  the  20th  of  January,  1818 ;  the 
execution  issued  the  22d  of  January,  1819.  The  execution 
itself  was,  therefore,  void.  For  aiding  in  the  escape  of  the  de- 
fendant upon  either  of  these  executions,  Daniel  Lawrence  could 
not  be  criminally  punished. 

In  the  next  place,  if  the  constable  had  performed  his  duty  so 
*that  he  could  complain  of  anybody,  he  was  not  liable  to  the 
plaintiffs  in  the  execution.  They  had  no  right  to  call  on  him 
for  the  payment  of  the  executions ;  and  if  he  chose  voluntarily 
to  come  forward  and  pay  the  plaintiffs,  that  affords  no  ground  for 
calling  on  any  one  to  compensate  him ;  and  if  he  had  not  done 
his  duty  he  surely  can  have  no  claim. 

In  the  third  place,  there  was  a  plain  violation  of  law  in  ad- 
mitting Pitney's  receipt.  It  was  not  so  proved  as  to  render  it 
admissible  in  this  action. 

But,  in  the  last  place,  for  a  resistance  to  a  public  officer,  unless 
a  personal  injury  is  done  to  him,  no  civil  action  lies.  The  suit 
is  radically  wrong.  And  it  certainly  assumes  the  appearance  of 
a  combination  between  the  constable  and  plaintiffs  to  extort  the 
money  from  a  third  person  because  they  could  not  get  it  from 
the  defendant. 

Judgment  unanimously  reversed. 
*827 


2  SOUTH.]          FEBRUARY  TERM,  1820.  973 


Shotwell  r.  M'Kown. 


JACOB  SHEPHERD  v.  PETER  F.  BAYLOR. 

Misconduct  of  jury,  (a) 
On  certiorari. 

KlRKPATRICK,  C.  J. 

In  this  case  the  jury,  after  they  had  retired  to  consider  of 
their  verdict,  left  the  room  forcibly  and  against  the  will  of  the 
constable ;  one  of  them  actually  absconded  and  returned  home 
to  his  own  house ;  and  two  others  were  found  in  the  public  road 
and  could  not  be  gotten  to  return  till  they  were  actually  seized 
and  taken  back  by  the  constable. 

Now,  though  it  be  admitted  that  small  irregularities  in  the 
jury,  such  as  eating  and  drinking,  unless  it  be  by  the  procure- 
ment or  at  the  expense  of  the  prevailing  party,  is  not  sufficient 
to  set  aside  a  verdict,  yet  conduct  like  this  is  too  gross  to  be 
tolerated.  It  is  such  a  deviation  from  duty,  decency  and  order 
as  to  impeach  the  motives  as  well  as  the  verdict  of  any  jury ; 
and,  therefore — 

Let  the  judgment  be  reversed. 


*SHOTWELL,  v.  M'KowN. 

Agent  not  answerable  in  his  individual  capacity.  (6) 
On  certiorari. 

(a)  Demund  v.  Oowan,  ante  687 ;  Or  am  v.  Bishop,  7  Hal,  159. 

(b)  Tattle  v.  Ayres,  Penn.  *6Sg  /  Stephens  v.  Bacon,  t  Hal  1 ;  The  Baptist 
Church  v.  Mulford,  S  Hal.  186;  Kean  v.  Davis,  1  Zab.  68S ;  Stewart  v.  John- 
ton,  Ooxe  27;  Bay  v.  Cook,  2  Zab.  Stf  ;  Perth  Amboy  Co.  v.  Qmdit,  1  Zab.  659; 
Bwley  v.  Kitchcll,  Spen.  305. 

*828 


974  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Demand  v.  French. 


This  action  would  seem,  from  a  very  indefinite  state  of  demand, 
to  be  founded  upon  a  note  in  the  following  words :  "  Rah  way, 
July  30,  1816.  Dolls.  113.01.  Three  months  after  date  the 
Patent  Cloth  Manufacturing  Company  promise  to  pay  William 
Frazee  or  order,  at  their  manufactory,  one  hundred  and  thirteen 
VlOO  dollars,  with  interest,  value  rec'd,  without  defalcation  or 
discount.  William  Shotwell,  agent."  On  the  back  of  the  note 
there  is  an  assignment  to  M'Kown,  dated  July  31st,  1816,  and 
an  endorsement  in  these  words :  "  Rec'd  on  account  of  the  within 
note,  at  sundry  times,  in  meal,  flour  &c.,  from  grist-mill,  to  the 
amount  of  thirty-two  dollars  I/IQO.  Rahway,  1  Oct.,  1817. 
John  M'Kown." 

W.  Hoisted,  for  plaintiff. 
Scudder,  for  defendant. 

KlRKPATRICK,  C.  J. 

This  action  is  brought  upon  a  promissory  note,  purporting  to 
be  given  by  the  Patent  Cloth  Manufacturing  Company  to  Wil- 
liam Frazee,  for  $113.01,  dated  July  30th,  1816,  and  payable  in 
three  months  at  their  manufactory,  signed,  "  William  Shotwell, 
agent,"  and  assigned  by  William  Frazee  to  John  M'Kown,  the 
plaintiff. 

Shotwell  is  not  answerable  in  his  individual  capacity  for  this 
money.  The  agent  is  not  answerable  for  the  principal.  The 
assignee  must  look  to  the  company.  9 

Judgment  reversed. 


JOSEPH  DEMUND  v.  THOMAS  FRENCH. 

Evidence. 

On  certiorari. 

Case  argued  by  Vroom,  for  plaintiff;  Hahey,  for  defendant. 


2  SOUTH.]  FEBRUARY  TERM,  1820.  975 


Demund  r.  French. 


KlRKPATRICK,  C.  J. 

This  was  an  action  of  trover  for  two  hundred  cocks  of  hay. 
It  appears  by  the  justice's  return  and  the  affidavits  accompanying 
the  same  that  Demund  had  taken  the  benefit  of  the  insolvent  act, 
and  that  one  Shafer  had  been  appointed  his  assignee;  that 
French  instituted  this  suit  on  the  15th  of  July,  *1818,  and  that 
it  was  adjourned  from  time  to  time  till  the  27th  of  August  fol- 
lowing; that  during  this  time,  viz.,  on  the  3d  of  August,  1818, 
Shafer,  the  assignee,  instituted  a  suit  against  French  before  one 
Justice  Little,  which  was  adjourned  till  the  24th  of  that  month, 
and  then  tried,  and  a  judgment  rendered  for  Shafer,  the  plaint  iff. 

Upon  the  trial  of  the  cause  now  before  us,  it  was  alleged  by 
Demund  that  this  very  matter  about  the  hay  had  been  set  up  by 
French  in  Shafer's  action  against  him,  and  had  been  there  inves- 
tigated and  settled,  and  to  prove  that  it  was  so,  offered  the  trans- 
cript of  Little's  docket  in  that  case,  duly  certified,  but  it  was 
overruled  by  the  justice  upon  the  ground  that  it  was  not  a  pro- 
ceeding between  the  same  parties,  (a)  This,  I  think,  was  error. 
How  the  matter  might  have  appeared  is  immaterial ;  it  ought  to 
have  been  examined. 

SOUTHARD,  J.,  remarked  that  a  rule  had  been  taken  on  the 
justice  to  amend  his  record,  but  he  had  returned  thereto  that  he 
could  not  in  the  particulars  required ;  and  affidavits  were  taken 
which,  among  other  things,  stated  that  a  witness,  Creely,  had  been 
offered  to  prove  that  the  hay  in  dispute  belonged  to  the  defend- 
ant, of  his  assignee,  Shafer,  but  that  the  justice  refused  to  permit 
any  question  to  be  put  proving  the  property  in  them  or  any 
other  person  except  the  plaintiff.  There  mast  be  some  mistake 
in  this  matter.  That  any  justice  in  such  an  action  should  pre- 
vent the  defendant  from  proving  that  the  right  of  property  was 
in  himself  and  not  in  the  plaintiff  is  scarcely  credible  in  judicial 
proceedings.  If  he  did  so  there  ought  to  be  a  reversal  for  that 
cause,  for  there  has  been  a  complete  perversion  of  justice. 

Judgment  reversed. 

(a)  Oarhart  v.  Miller,  ante  57S ;  Davisson  v.  Gardner,  5  Hal.  XS9  ;  State  T. 
Water  Commissioners,  1  Vr.  tJff* 

*829 


976  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Hoffr.  Taylor. 


WILLIAM  HOFF  v.  JOSEPH  TAYLOR. 

Reference  to  three,  whose  report  or  the  report  of  two,  to  be  final  &c.    Two 
only  acted.     Their  report  is  unlawful,  (a) 


On  certiorari. 

This  case  was  presented,  without  argument,  to  the  court  at  a 
former  term,  and  the  chief-justice  intimated  the  opinion  to  be 
against  the  judgment.  On  which  the  counsel  of  the  defendant 
in  certiorari,  Watt  and  jR.  Stockton,  laid  Wittes  %15  and  some 
other  cases  before  the  court,  suggesting  that  they  conclusively 
sustained  the  legality  of  the  report.  The  facts  are  stated  in  the 
opinion  delivered. 

SOUTHARD,  J. 

This  is  an  action  of  debt  commenced  by  Taylor  against  Hoff 
for  $39.71.  On  the  return  of  the  summons  on.  the  20th  of  June, 
1818,  the  plaintiff  filed  an  account  in  the  usual  form,  and  de- 
fendant pleaded  the  general  issue.  Plaintiff  demanded  a  venire, 
which  was  issued  on  the  23d  of  June,  returnable  on  the  26th, 
when  the  cause  was  heard,  and  the  foreman  of  the  jury  rendered 
a  verdict  for  the  plaintiff  for  $11.06,  but  upon  being  polled,  at 
the  request  of  the  plaintiff,  three  of  the  jurors  disagreed  to  the 
verdict.  Upon  this  the  parties  agreed  to  refer  the  cause)  and  a 
rule  of  reference  was  entered  in  these  words :  "  By  consent  of 
the  above  parties,  and  at  their  request,  it  is  ordered  that  the 
matters  in  difference  in  the  above  cause  be  submitted  to  the  final 
end  and  determination  of  Capt.  William  Conover,  William  Mur- 
ray and  Cornelius  Walling,  referees,  mutually  chosen  by  and 
between  the  said  parties,  whose  report,  or  the  report  of  any  two  of 
them,  made  in  writing  and  signed  by  the  said  referees,  or  any  two 

(a)  Moore  v.  Ewing,  Coxe  144  ;  Egbert  v.  Smith,  Perm.  *9%4  ;  Reeves  v.  Qoff, 
Penn.  *143 ;  Ho/man  v.  Ho/man,  2  Dutch.  175 ;  see  Pintard  v.  Irwin,  Spen, 
510  ;  Rogei-s  v.  Tatum,  1  Dutch.  282. 

*830 


2  SOUTH.]  FEBRUARY  TERM,  1820.  977 

Hoffr.  Taylor. 

of  them,  and  delivered  to  this  court  ou  or  before  the  1st  of  Sep- 
tember next,  shall  be  binding  &c. ;  and  the  first  meeting  of  the 
referees  shall  be  on  the  first  Monday  in  August,  1818,  at  two  o'clock 
p.  M.,  at  &c.,  and  afterwards  on  their  own  adjournments,  giving1 
notice  &c. ;  that  in  case  of  the  absence  of  either  party,  he  hav- 
ing notice  of  the  time  and  place  of  the  meeting  of  the  referees, 
they  are  to  proceed  ex  parte  and  without  him  ;  and  that  the 
parties  have  subpoenas  for  their  witnesses"  &c. 

On  the  3d  of  August  two  of  the  referees,  viz.,  Conover  and 
Murray,  met,  and  it  being  proved  that  the  defendant,  Hoff,  and 
the  other  referee,  Walling,  had,  on  the  27th  of  July,  received 
notice  of  the  time  and  place  of  meeting,  they  were  sworn,  heard 
the  plaintiff,  and  on  the  same  day  made  a  report  in  his  favor  for 
$38.51,  upon  which  report  the  justice  entered  judgment. 

By  affidavits  taken  under  rule  it  appears  that  when  the  notice 
was  served  on  Cornelius  Walling,  the  referee,  he  declared  that  he 
would  not  attend,  and  gave  as  a  reason  that  he  was  a  relation  of 
Hoff,  the  defendant.  And  when  notice  was  served  on  Hoff,  he 
declared  that  he  would  not  attend,  and  gave  to  one  of  the 
witnesses  as  his  reason  that  Walling,  the  referee,  would  not 
attend. 

*The  only  question  which  has  been  raised  upon  the  certiorari 
which  presents  these  facts  is  whether,  under  the  circumstances, 
the  two  referees  had  the  power  to  hear  the  plaintiff  and  make  a 
report — whether  the  report  is  good. 

From  the  statement  which  has  been  made  of  the  facts  it  is 
manifest  that  here  was  a  warm  litigation  in  which  neither  party 
was  disposed  to  yield  any  of  his  claims,  and  in  which  it  was 
difficult  for  a  jury  to  discover  the  truth ;  that  the  parties  sup- 
posed they  were  making  a  reference  to  three  men,  all  of  whom 
were  to  act ;  that  one  of  the  parties  was  not  willing  that  two  of 
the  referees  should  act  without  the  third;  that  this  third  never 
did  take  upon  himself  the  burden  of  this  submission,  but,  on  the 
contrary,  wholly  refused,  and  gave  as  his  reason  his  relationship 
to  one  of  the  parties.  Was  it  competent,  then,  for  the  two  to 
hear  the  cause  and  make  a  report,  after  the  refusal  of  the  other, 
without  an  opportunity  to  supply  his  place  and  against  the  will 
*831  62 


978  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Hoff  v.  Taylor. 

of  the  defendant  ?  Their  authority  is  contained  in  the  written 
rule ;  what  does  that  say  ?  The  cause  is  submitted  to  the  three, 
"  whose  report,  or  the  report  of  any  two  of  them,"  shall  bind  &c. 

In  putting  a  construction  upon  these  words  we  must  recollect 
that  the  power  granted  by  them  is  not  of  a  general  nature  and 
of  public  concern,  where,  from  principles  of  public  policy,  the 
majority  conclude  the  minority,  and  their  act  is  the  act  of  the 
whole ;  but  it  is  a  private  confidence,  a  mere  delegation  of  power 
where  the  interest  of  the  constituent  is  directly  and  only  con- 
cerned, and  where  the  will  of  the  parties  and  the  intention  and 
construction  of  the  words  of  the  grant  must  be  strictly  followed. 

The  parties  agree  upon  three  men  to  hear ;  the  rule  refers  the 
matters  to  be  heard  to  three,  and  wherever  it  speaks  of  their  acts 
in  relation  to  the  hearing,  as  in  the  reference,  the  meetings,  the 
adjournments,  it  speaks  of  all  without  qualification,  "  the  referees" 
Wherever  it  speaks  of  the  result  of  the  hearing,  it  expressly 
•draws  the  distinction  and  states  that  the  result  may  be  indicated 
by  all  or  by  two ;  "  their  report,  or  the  report  of  any  two  of 
them,"  "  signed  by  them,  or  any  two  of  them."  The  fair  construc- 
tion of  the  different  parts,  then,  is  that  the  power  is  vested  in 
the  three  who  are  to  hear,  examine  and  judge  of  the  cause ;  but 
after  this  hearing,  if  they  cannot  agree,  the  report  or  judgment 
of  two  of  them  is  to  bind.  All  are  to  deliberate,  consult,  reason  ; 
but  the  weight  or  majority  of  opinion  is  to  rule.  The  *whole 
court  is  to  hear,  but  the  claim  which  gains  the  most  suffrages  is 
to  prevail. 

So,  too,  I  am  sure,  is  the  understanding  of  the  parties  and  the 
reason  of  the  thing.  When  a  man  refers  a  matter  to  three  he 
does  not  say  nor  mean  two.  When  he  takes  his  cause  from  the 
court  and  places  it  in  the  hands  of  private  individuals,  he  does 
it  because  he  has  confidence  in  their  intelligence  and  integrity ; 
and  it  may,  and  often  does,  happen  that  he  has  full  and  implicit 
reliance  upon  one  only  of  the  persons  chosen,  and  that  reliance 
governs  him  in  agreeing  to  the  rule.  Would  he  consent  to  the 
reference  if  he  understood  that  he  was  to  be  bound,  in  every 
event,  even  if  that  man  refused  to  act  ?  Surely  not.  In  the 
present  case,  Hoff  had  confidence  in  Walling  ;  he  was  unwilling 

*832 


2  SOUTH.]  FEBRUARY  TERM,  1820.  979 

Hoff  v.  Taylor. 

that  a  hearing  should  take  place  without  him.  When  he  agreed 
to  the  rule  did  he  understand  that  he  was  to  be  bound,  though 
Walling  did  not  act?  And  ought  his  agreement  to  be  so  con- 
strued as  to  violate  the  very  principle  upon  which  it  was  founded  ? 

The  practice,  too,  so  far  as  I  have  ever  learned  it,  is  in  com- 
pliance with  this  construction  of  the  rule.  I  have  never  heard 
of  a  case  where  the  rule  was  of  this  kind  and  one  of  the  im-n 
named  refused  to  become  a  referee,  yet  the  parties  proceeded 
without  a  new  agreement,  or  the  substitution  of  some  one  in  the 
place  of  him  who  declined.  On  the  contrary,  I  believe  the  ex- 
perience of  every  member  of  the  bar  will  bring  to  his  recollec- 
tion cases  where,  after  such  refusal,  the  cause  did  not  progress 
until  the  rule  was  discharged  or  a  substitution  made. 

Nor  am  I  aware  of  any  serious  evil  resulting  from  this  con- 
struction. It  can,  at  most,  only  create  a  short  delay  where  there 
is  a  refusal  to  serve.  If  that  refusal  is  corruptly  procured,  the 
party  is  liable  to  punishment  for  his  contempt.  If  it  is  on  the 
mere  motion  of  the  referee,  the  rule  must  be  discharged  or  a 
substitution  of  another  referee  made.  In  the  present  case,  the 
rule  would  have  been  discharged  upon  Taylor's  motion,  upon 
proof  of  the  facts. 

The  plain  sense  and  meaning  of  the  rule,  therefore,  and  the 
course  of  the  practice,  require  that  the  report  of  these  two  ref- 
erees, and  the  judgment  founded  upon  it,  should  be  set  aside, 
unless  there  is  something  in  the  adjudged  cases  compelling,  irre- 
sistibly, to  a  different  result. 

There  is  no  adjudged  case  in  this  court,  within  my  own  ob- 
*servation,  nor  is  any  reported.  I  am  informed,  however,  that 
some  have  arisen  in  former  times,  and  that  the  decision  has 
always  been  unfavorable  to  the  validity  of  the  report. 

In  the  books  there  are  many  cases  pointing  to  this  subject, 
but  I  have  not .  found  one,  upon  a  rule  or  submission,  worded 
like  the  present,  and  although  I  am  not  satisfied  with  the  reason- 
ing upon  them,  yet  I  think  there  is  plausible  ground  for  the 
•course  of  decision. 

The  case  of  Dolling  v.  Matchett,  reported  in  Barnes  57,  in 
WiUes  215,  and  referred  to  in  Kyd  107  and  in  many  othei 

*833 


980  NEW  JERSEY  SUPREME  COURT.      [5  LAW 

Hoff  v.  Taylor. 

books,  seems  to  be  a  leading  case,  and,  in  the  estimation  of  the 
counsel  of  the  defendant,  is  conclusive.  The  rule  there  is  pre- 
cisely the  same  as  in  2  Oro.  278  and  $  Qro.  400,  and  all  the 
other  cases  which  have  what  is  commonly  called  the  ita  quod 
clause  in  them.  The  words  are,  to  the  three,  "  so  AS  they,  or  any 
two  of  them,  make  the  award."  These  words  so  as  have,  in  all 
the  cases,  been  considered  as  disjoining  the  authority  and  author- 
izing two  to  act  without  the  third  and  make  a  report,  provided 
the  third  has  had  notice  of  their  meeting  so  that  he  might  have 
attended,  and  was  not  excluded  by  fraud.  The  report  of  a  part 
is  expressly  sanctioned,  upon  the  ground  that  by  the  fair  con- 
struction of  the  whole  rule  the  authority  was  separated,  and  as- 
much  vested  in  a  part  as  in  the  whole.  But  in  comparing  these 
cases  with  the  one  before  us,  it  is  proper  to  make  three  remarks. 
1.  In  none  of  them  is  the  reference  like  the  present,  to  threer 
whose  report,  or  the  report  of  any  two  of  them  &c.  2.  It  does- 
not  appear  in  any  of  them  that  one  or  more  of  the  persons  ap- 
pointed refused  the  trust.  On  the  contrary,  the  fair  import  of 
all  of  them  is  that  the  persons  appointed  undertook  the  trust,, 
but  afterwards  one  or  more  was  intentionally  and  improperly 
absent  from  the  trial,  or  being  present  they  could  not  all  agree. 
But  here,  Walling  never  agreed  to  act  as  referee  but  absolutely 
declined.  3.  In  all  those  cases  the  language  is  that  they,  or  any 
two,  may  "make  an  award"  An  award  is  a  judgment  formed 
and  pronounced.  To  make  an  award  is  to  form  and  publish  a 
judgment  upon  the  facts;  and,  perhaps,  in  the  construction  of 
the  rules  a  force  may  have  been  given  to  these  words,  which,  as 
I  before  remarked,  is  plausible  but  not  altogether  satisfactory. 
They  may  have  been  considered  as  conveying  the  idea  of  per- 
forming the  whole  power  given  by  the  rule  of  *hearing  and 
judging  and  publishing  the  judgment.  When  two  were  author- 
ized to  make  an  award,  it  may  have  been  considered  that  they 
had  full  power  to  do  everything  necessary  to  its  completion  and 
perfection — to  hear,  to  judge,  to  publish.  But  in  this  case  it  is 
not  said  that  the  two  may  make  a  report,  thus  conveying  the 
idea  that  they  may  do  everything  necessary  to  complete  it ;  but 
it  is  said,  "  the  report  of  two  shall  be  final,"  thus  referring  to- 

*834 


2  SOUTH.]          FEBRUARY  TERM,  1820.  981 

Hoff  t».  Taylor. 

the  act  and  not  the  actors ;  describing  that  matter  which  may  a* 
well  be  the  result  of  the  consultations  of  the  whole  as  a  part. 
When  it  speaks  of  making  the  report,  of  the  hearing  and  delib- 
eration, it  speaks  of  all.  When  it  speaks  of  the  report,  the  re- 
sult of  that  hearing  and  deliberation,  it  speaks  of  a  smaller  part. 

Kunokle  v.  Kunckle,  1  Dal.  364,  has  been  supposed  to  confirm 
the  idea  that  two  have  power  to  act  under  a  reference  like  thi>  ; 
but  I  think  the  case  has  been  misapprehended.  The  words  of 
the  rule  are  not  given  in  the  report,  but  the  three  referees  all 
acted,  were  present  and  heard  the  cause.  Two  of  them  agreed, 
the  third  dissented,  and  telling  the  others  that  they  could  make 
the  report  without  him,  left  them.  The  two  did  make  the  report. 
It  is,  then,  simply  the  case  of  all  the  referees  acting  and  a 
majority  signing  the  report. 

The  case  of  Kingston  v.  Kincaid  d  al.,  said  (Kyd  107}  to  have 
"been  decided  at  April  sessions,  1806,  in  the  United  States  circuit 
court  for  Pennsylvania,  is  of  the  same  character.  The  reference 
was  to  three  or  any  two  of  them,  where,  of  course,  without  any 
artificial  construction  of  words  and  phrases,  the  two  had  full 
power,  the  same  as  the  three.  The  three  met  often  on  the  sub- 
ject, but  as  one  could  not  agree  with  the  others  upon  the  im- 
portant points  of  the  dispute,  he  said  it  was  unnecessary  for 
them  to  call  on  him  again,  and  withdrew.  The  two  proceeded 
to  conclude  their  hea'ring  and  made  a  report,  which  was  sup- 
ported, and,  I  think,  correctly.  Here  all  took  the  burden  on 
themselves ;  all  met  and  heard,  but  two  only  could  agree. 

In  Green  v.  Miller,  6  Johns.  39,  there  was  a  parol  submission 
to  five,  without  any  addition  that  four  or  a  less  number  might 
.award.  Four  did  make  the  award,  and  it  was  held  bad. 

There  are  other  cases,  scattered  through  the  books,  but  I 
believe  they  are  all  reducible  to  those  that  I  have  considered,  and 
I  see  in  them  nothing  to  change  the  view  which  I  have  taken  of 
the  plain  import  of  the  rule  of  reference  and  the  practice  under  it. 

*I,  therefore,  think  that  the  report  is  not  valid,  and  that  the 
judgment  founded  upon  it  must  be  reversed  ;  and  in  this  opinion 
my  brethren  agree  with  me. 

Judgment  reversed. 
*835 


982  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

State  v.  Kirby. 


THE  STATE  v.  STEPHEN  KIRBY,  one  of  the  justices  &c.  (a) 

1.  In  error  a  reason  not  filed  cannot  be  heard,  but  if  defect  apparent  on  the 
record,  time  given  to  file  reason.  (6) 

2.  On  motion  to  quash,  reasons  need  not  be  filed. 

3.  The  title  of  certiorari  to  bring  up  military  tax-warrant  should  be  State  v. 
Delinquent,  (c) 

4.  Ought  to  be  prosecuted  by  one  only,  not  several  jointly,  (d) 

5.  Incorrect  return  not  reason  to  quash. 


At  February  term,  1818,  on  motion  and  argument  by  White 
and  L.  H.  Stockton,  for  prosecutor,  and  by  Ewing  and  Woodruff 
against  the  allowance  of  the  writ,  a  certiorari  was  issued  to  bring 
up  the  tax-warrant  against  delinquents  in  military  service  in 
1817,  in  the  battalion  commanded  by  Major  Baxter,  in  Gloucester. 
By  the  return  of  the  writ  the  original  warrant  and  list  of  delin- 
quents, upon  the  same  paper,  were  brought  up.  The  warrant  is 
directed  to  ,  one  of  the  constables  of  the  township  of 

Newton  &c.,  and  is  in  the  words  of  the  form  given  in  the  act 
establishing  a  militia  system,  passed  February  18th,  1815.  The 
list  contains  more  than  two  hundred  names  for  different  sums. 
The  warrant  is  signed  by  Stephen  Kirby,  .to  whom  the  certiorari 
is  directed,  and  in  his  return  he  states  "  that  he  put  his  name  to 
the  said  tax- warrant  without  seeing  or  having  delivered  to  him 

(a)  S,  C.,  1  Hal.  143;  see  State  v.  Atkinson,  4  Hal.  271;  State  v.  Davis,! 
South.  311 ;  American  Dock  Go.  v.  Trustees  of  Public  Schools,  5  Stew.  Eq.  434 ,~ 
Loder  v.  Baker,  10  Vr.  50  ;  Marlboro  v.  Atlantic,  18  Vr.  263. 

(6)  Baker  v.  Moore,  Penn.*961;  Griffith  v.  West,  5  Hal.  350;  N.  J.  R.  R.  v. 
Suydam,  2  Harr.  69  ;  see  Ballinger  v.  Sherron,  2  Or.  144  ,'  Decker  v.  McLorinan, 
13  Vr.  414- 

(c)  Upper  Freehold  v.  Hillsborough,  1  Or.  289  ;  Morris  Canal  ads.  State,  2  Or. 
411 ;  State  v.  Hanford,  6  Hal.  71 ;  Readinyton  v.  Dilley,  4  Zab.  209 ;  State  v. 
Justice,  4  Zab.  413 ;  Oriscom  v.  Gilmore,  3  Or.  475 ;  see  State  v.  Oiberson,  & 
Or.  391 ;  Grove  v.  Mott,  17  Vr.  333. 

(d)  See  Browning  v.  Cooper,  3  Harr.  196  ;  State  v.  Flavell,  4  Zab.  370  ;  Powell 
v.  Hitchwer,  3  Vr.  211 ;  Bergen  v.  Van  Home,  3  Vr.  490  ;  State,  Farmers  Bank 
v.  Cook,  3  Vr.  347. 


2  SOUTH.]  FEBRUARY  TERM,  1820.  983 

State  v.  Kirby. 

any  return-list  of  delinquents,  nor  did  any  such  list  remain  with 
him;  nor  had  he  any  record  or  proceeding  whereby  he  could 
make  any  more  full  return." 

At  September  term,  1819,  the  cause  was  moved  and  argument 
in  part  had  thereon,  but  some  difficulty  arising  upon  the  deposi- 
tions which  were  offered,  the  parties  agreed  that  it  lie  over  and 
motion  to  quash  the  writ  be  made.  In  his  remarks  M' 1 1  mi  in- 
stated as  a  reason  for  reversing  the  proceedings  that  the  warrant 
was  directed  to  no  constable  by  name.  Ewing  objected  to  the 
discussion  of  this  reason  because  it  was  not  in  the  reasons  filed. 
After  some  argument,  the  court  stated  the  rule  to  be  that  a  party 
may  not  argue  and  rely  upon  a  reason  which  he  has  not  filed  and 
given  notice  of  to  his  adversary ;  but  as  this,  if  a  defect  at  all, 
was  apparent  upon  the  face  of  the  record,  which  the  court  must 
inspect  and  could  not  overlook,  argument  would  be  heard  upon 
it ;  and  if  the  adversary  required  it,  it  must  be  filed  and  time 
given  to  look  into  it. 

*At  November  term,  1819,  Ewing  moved  to  quash  the  writ 
of  certiorctri.  White  objected  that  no  reasons  had  been  filed. 
But  the  court  said  that  it  was  not  necessary  to  file  reasons  before 
such  motion  was  made.  Ewing  and  Wall  then  urged — 1.  That 
the  name  of  the  state  and  the  justice  had  been  incorrectly  used. 
2.  That  the  writ  ought  not  to  be  against  the  justice  but  the  per- 
sons charged  with  the  fine,  as  in  pauper  cases.  The  King  v.  Over- 
seers of  the  Poor  &c.  3.  That  a  number  of  cases  were  united 
in  the  same  warrant.  That  the  case  of  each  was  separate  and 
depended  on  distinct  facts,  and  ought  to  have  had  a  separate 
writ,  as  in  cases  of  taxation  and  poor-rates  in  England.  4.  Th« 
return  was  irregular.  The  justice  had  not  the  legal  custody  of 
the  warrant  and  could  not  return  it — the  constable  had  it.  5. 
That  the  justice  was  one  of  the  delinquents  named  in  the  war- 
rant, and  could  not,  therefore,  issue  writ  nor  make  return  to  cer- 
tiorari. 

White  and  M'llvaine  answered  that  objections  were  made 
when  the  court  ordered  the  writ,  and  it  was  therefore  now  too 
late  to  object  to  the  form ;  that  the  entitling  the  writ  was  ac- 

*836 


984  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

State  v.  Kirby. 


cording  to  the  invariable  form.  2  Bur.  101$  ;  3  Bur. 
So-  in  turnpike  cases.  So,  The  State  v.  Orphans  Court  of  Bur- 
lington County,  in  this  court.  So,  in  the  tax  on  Indian  lands. 
The  only  interest  the  state  had  was  not  against  the  writ,  but  in 
its  favor,  to  see  that  the  citizen  be  not  oppressed  ;  that  the  fine 
was  so  small  that  if  each  must  have  a  separate  writ,  they  had 
better  submit  to  the  injustice  ;  that  this  was  the  only  mode  of 
redress.  Heretofore  notice  was  given  to  train  <fec.,  but  now  those 
not  returned  by  the  captain  are  to  be  taxed,  and  the  tax  collected 
by  the  collector  ;  no  notice  is  given  of  the  battalion  or  company 
court  ;  the  first  notice  is  a  warrant  ;  the  first  act  to  be  complained 
of  is  that  of  the  justice,  and  he  is  the  one  to  be  applied  to  for 
redress.  And  as  to  his  name  being  in  the  warrant,  it  could  not 
be  avoided  ;  he  was  a  delinquent,  and  he  could  not  refuse  to  sign 
the  warrant  as  a  justice. 

It  was  replied  that  the  practice  was  not  as  claimed  ;  that  there 
were  cases  each  way,  and  perhaps  no  settled  rule  ;  most  of  them 
passing  sub  silentio,  without  comment  ;  that  the  Burlington  case 
was  by  agreement  of  parties  to  take  no  exception  to  form  ;  that 
State  v.  Turnpike  Company  is  proper,  because,  to  bring  up  in- 
quisition in  their  favor  ;  that  there  is  no  case  where  the  court, 
whose  decision  is  to  be  reviewed,  is  defendant  ;  and  that  *as  to 
the  argument,  when  the  writ  was  ordered,  the  court  merely 
directed  it  to  issue,  but  did  not  direct  its  form. 

KlRKPATRICK,  C.  J. 

This  is  a  certiorari  allowed  at  bar,  on  the  motion  of  counsel, 
in  behalf  of  Isaac  Jones,  William  Jones  and  others,  who  allege 
themselves  to  be  aggrieved,  and  who  are  endorsed  as  prosecutors. 
It  is  directed  to  Stephen  Kirby,  Esq.,  one  of  the  justices  of  the 
peace  of  the  county  of  Gloucester,  commanding  him  to  send  up 
a  certain  list  of  delinquents,  fined  for  neglect  of  military  duty, 
returned  to  him  by  a  certain  battalion  paymaster  therein  men- 
tioned, and  also  his  warrant  of  distress  thereupon  issued. 

To  this  certiorari  the  justice  returns  a  certain  warrant  of  distress, 
and  certifies  that  he  put  his  name  to  the  said  warrant  without 
seeing  or  having  delivered  to  him  any  list  of  delinquents  by  the 

*837 


2  SOUTH.]  FEBRUARY  TERM,  1820.  985 

State  v.  Kir  by. 

said  battalion  paymaster  or  any  other  officer  ;  and  that,  therefore, 
no  such  list  remains  with  him,  nor  any  record  thereof,  nor  other 
proceeding  from  which  he  can  make  a  more  full  return. 

It  is  now  moved  to  quash  this  certiorari.  1.  Because  it  is 
wrongly  entitled ;  the  prosecutors  cannot  make  use  of  the  name 
of  the  state  to  aid  them ;  the'  public  interest  is  the  other  way  ; 
nor  can  they  make  the  justice  a  party  defendant;  he  acted  as  a 
judge  only,  and  is  no  way  concerned  in  interest  or  office.  2. 
Because  these  fines  are  several,  and  not  joint,  and  therefore  a 
certiorari  cannot  be  taken  out  upon  the  joint  application  of  many, 
nor  can  a  general  judgment,  either  of  affirmance  or  reversal,  be 
rendered  upon  it;  each  must  sue  for  himself.  3.  Because  the 
return  is  wholly  insufficient. 

I  am  inclined  to  think  the  mover  is  right,  in  his  law,  in  every 
one  of  these  positions,  and  yet  I  am  not  satisfied  that  the  writ 
ought  to  be  quashed. 

As  to  the  first  reason.  I  am  induced  to  believe  there  has  been 
some  want  of  uniformity,  and,  perhaps,  some  want  of  caution,  too, 
in  the  entitling  and  the  entering  of  certioraris,  rules  and  other 
proceedings  had  upon  applications  to  the  superintending  power 
of  this  court.  The  name  of  the  state  certainly  cannot  be  used  at 
pleasure.  It  can  be  made  plaintiff  only  where  the  public  interest, 
the  public  peace  or  the  public  order  and  economy  are  concerned, 
and  it  can  be  made  defendant  in  no  case  whatsoever.  Whenever 
the  state,  therefore,  comes  into  the  courts  of  justice,  *it  comes  in 
for  the  maintenance  and  preservation  of  these  concerns,  and  not 
otherwise.  And  as  the  state  cannot  be  made  plaintiff  except  in 
these  cases,  so  neither  can  the  judicatory  whose  judgment  is  ques- 
tioned, be  made  defendant  merely  because  it  may  have  erred  in 
judgment.  I  do  not  now  speak  of  cases  of  mandamus,  quo 
warranto  or  prohibition  ;  they  depend  upon  other  principles,  and 
are  founded  upon  the  supposition  of  some  refusal  of  justice, 
usurpation  of  office  or  franchise,  or  unlawful  assumption  of 
power  and  jurisdiction,  all  implying  some  degree  of  criminality 
in  the  judicatory,  as  well  as  wrong  to  the  citizen. 

It  lias  been  suggested,  in  the  argument,  that  in  the  review  of 
those  special  jurisdictions  the  state,  always  guardful  of  the  rights 

*838 


986  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

State  v.  Kirby. 

of  the  individual  and  jealous  of  every  deviation  from  the  course 
of  the  common  law,  steps  in  to  the  aid  of  the  citizen  and  lends 
him  its  name  in  the  defence  of  his  rights.  But  I  do  not  per- 
ceive that  this  is  the  case  in  England,  nor  do  I  think  whatever 
entries  may  appear  in  the  minutes  to  the  contrary,  it  has  ever 
been  approved  here.  In  all  these*  cases  where  the  public  is  con- 
cerned, if  a  party  comes  in  to  seek  relief  by  certiorari  or  other- 
wise the  state  is  made  the  plaintiff,  and  he  against  whom  the 
judgment  or  proceeding  is,  and  who  seeks  relief,  is  made  the 
defendant. 

This,  indeed,  necessarily  follows  from  the  principle  that  the 
state  cannot  be  sued  or  prosecuted,  or  brought  in  to  defend  itself 
in  a  court  of  justice  by  a  private  citizen. 

The  proceedings  of  which  we  have  been  speaking  arise  upon 
municipal  regulations  made  for  the  public  benefit,  the  public 
convenience  or  the  public  safety.  In  the  execution  of  these  regu- 
lations the  state  is  always  the  actor,  carrying  them  into  effect 
either  in  its  ordinary  courts  of  justice,  or  by  special  commis- 
sioners or  agents  appointed  for  that  purpose.  If  these  courts  or 
these  commissioners  or  agents  in  any  way  injure,  aggrieve  or 
vex  the  citizen,  he  applies  to  this  court,  where  the  state  is  con- 
sidered as  always  present,  always  ready  to  hear,  always  ready  to 
render  justice.  But  still,  upon  such  application  for  redress,  the 
condition  of  the  parties,  if  parties  they  may  be  called,  is  not 
changed.  The  state  is  still  considered  as  the  actor,  resting,  as  it 
were,  for  a  moment  to  hear  the  complaint  of  the  citizen,  but 
never  as  the  defendant,  to  answer  for  injury  or  wrong,  for  it 
never  can  submit  to  be  called  in  question  upon  that  score.  It  is 
true  *that  in  writs  of  error  and  other  proceedings  by  way  of 
appeal  between  private  persons,  the  character  of  the  parties  is 
changed ;  he  that  brings  the  writ  of  error  or  takes  the  appeal 
becomes  the  actor  or  plaintiff,  and  he  against  whom  it  is  taken 
the  defendant ;  but  it  is  not  so  with  respect  to  the  state.  It 
never  can  be  made  a  defendant  to  answer  for  supposed  wrongs,, 
for  the  state  does  no  wrong.  The  state,  therefore,  in  these  cases, 
is  always  the  plaintiff,  and  he  who  seeks  the  relief  is  always  the 
defendant. 

*839 


2  SOUTH.]  FEBRUARY  TERM,  1820.  987 

State  v.  Kirby. 

This  is  the  rule  laid  down  with  respect  to  settlement  cases  in 
England.  Burr.  52.  It  is  the  course  on  all  certiwaris  and 
motions  to  quash  orders  and  judgments  made  in  a  summary  way 
by  justices  and  others.  Burr.  245, 251, 385.  It  would  be  end- 
less to  cite  cases.  It  is  the  course  upon  all  summary  convictions 
and  informations,  orders  to  appoint  constables,  to  take  materials 
to  repair  highways,  to  assess  poor-rates,  or  to  make  any  other 
impositions  or  restraints  whatsoever. 

Then,  to  apply  this  to  the  present  case.  The  party  suing  out 
this  writ  had  been  charged  with  neglect  of  duty ;  he  had  been 
warned  to  appear  before  the  proper  tribunals  to  make  his  defence 
against  the  penalty ;  he  had  failed  in  that  defence ;  he  had  been 
fined  and  a  distress-warrant  had  issued  against  him ;  in  all  this 
the  atate  was  the  prosecutor,  for  there  was  no  private  interest. 
Can  he,  then,  at  this  stage  of  the  business,  turn  round  and  him- 
self assume  the  name  of  the  state  to  reverse  the  whole  proceed- 
ing? The  state,  it  is  true,  must  stand  as  the  plaintiff;  it  is 
prosecuting  for  its  right ;  it  is  suing  for  its  fine ;  but  it  is  not  to 
stand  as  plaintiff  to  shelter  the  party  against  whom  it  is  prose- 
cuting, against  whom  the  judgment  is ;  he  must  be  the  defend- 
ant himself;  he  is  the  real  defendant,  the  man  against  whooi  the 
claim  is,  and  who  is  defending  himself  against  it.  The  justice 
is  the  mere  judicial  officer — he  has  nothing  to  defend,  he  never 
can  be  made  a  party. 

In  mere  matter  of  form,  therefore,  the  party  moving  to  quash 
this  certiorari  may  be  right ;  but  still,  as  the  writ  itself  is  for  a 
proper  object,  directed  to  the  proper  officers  and  advisedly  find 
regularly  issued,  and  as  this  entitling  is  but  a  mere  mistake  in 
the  endorsement  and  not  of  the  essence  of  the  thing  at  all,  and 
especially  as  there  seems  to  have  been  no  settled  practice  upon 
this  subject,  I  cannot  think  it  ought  to  be  quashed  for  that 
cause. 

Then,  as  to  the  second  reason.  Though  the  fines  be  several, 
*and  the  judgments  here  must  be  several,  yet  as,  from  the  nature 
of  the  thing,  there  can  be  but  one  act  of  the  justice,  one  record, 
one  distress- warrant,  and  when  that  is  removed  the  whole  i>  iv- 
moved;  and  as  each  of  the  persons  contained  in  it  may  conn  m 

*840 


988  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

State  v.  Kirby. 

and  assign  errors  for  himself,  there  can  be  no  reason  to  quash 
the  writ  merely  because  it  has  been  issued  upon  the  application 
of  more  than  one.  To  make  the  most  of  it,  they  have  only  ren- 
dered themselves  liable  for  costs. 

And  as  to  the  third  reason,  whatever  advantage  it  may  afford 
in  another  way,  it  certainly  cannot  be  a  ground  to  quash  the 
writ. 

In  my  opinion,  therefore,  let  the  party  take  nothing  by  his 
present  motion. 

ROSSELL,  J. 

In  this  case  the  defendant  should  take  nothing  by  his  motion. 
The  state,  I  conceive,  is  always  interested  that  its  laws  should  be 
properly  executed  by  the  officers  appointed  under  its  authority. 
When  these  officially  violate  or  disregard  the  law,  the  state  has 
called  them,  and  will  continue  to  call  them,  to  give  an  account 
of  their  proceedings  in  all  acts  like  the  present  of  a  public  nature. 
The  magistrate  was  the  proper  person,  and  the  only  one,  to  whom 
the  certiorari  could  be  directed.  The  objection  to  the  number  of 
persons  contained  in  the  execution  complained  of,  as  the  judg- 
ment must  be  joint,  is  equally  without  foundation.  Although  a 
joint  execution,  the  judgment  may  be  joint  or  several,  as  war- 
ranted by  the  proof. 

SOUTHAKD,  J. 

At  February  term,  1818,  upon  application,  in  open  court,  a 
writ  of  certiorari  was  allowed,  directed  to  Stephen  Kirby,  one  of 
the  justices  of  the  peace  of  the  county  of  Gloucester,  directing 
him  to  send  up  a  certain  tax-warrant  and  return-list  -of  delin- 
quents delivered  by  the  paymaster  therein  named,  if  any  such 
there  was,  on  which  such  warrant  was  issued ;  which  warrant 
had  been  issued  by  him  to  recover  militia  fines  from  the  persons 
named  in  the  list  who  were  alleged  to  have  been  delinquents. 
The  return  of  the  writ  is  in  these  words  :  "  In  obedience  to  the 
writ  of  the  state  to  me  directed,  I  do  herewith  send  the  tax-war- 
rant by  me  issued,  as  within  I  am  commanded  ;  and  I  do  fur- 
ther certify  that  I  put  my  name  to  the  said  tax-warrant  without 


2  SOUTH.]  FEBRUARY  TERM,  1820.  989 

State  r.  Kirby. 

seeing  or  having  delivered  to  me  any  return-list  of  delinquents  ; 
nor  do  any  such  list  remain  with  me,  nor  have  I  any  record  or 
proceeding  whereby  I  can  make  any  more  full  return." 

The  return-list  of  delinquents,  amounting  to  about  two  hun- 
dred and  twenty,  is  upon  the  same  paper  with  the  warrant,  and 
among  these  delinquents  is  the  name  of  the  justice  himself. 

Upon  these  facts,  a  motion  is  made  to  quash  the  writ  for  three 
reasons,  which  I  will  mention  in  their  order. 

1.  The  name  of  the  state  and  the  justice  are  improperly  used, 
and  it  is  incorrectly  entitled  against  the  justice ;  it  ought  to  be 
against  the  individuals. 

I  understand  that  all  the  proceedings,  the  entries  in  the  records 
of  the  court  and  the  direction  of  the  writ  is  The  State  v.  Kirby, 
If  this,  therefore,  be  wrong,  it  is  not  to  be  altered  or  amended> 
as  I  should  be  disposed  to  order  done  if  it  were  only  the  endorse- 
ment on  the  writ.  The  body  of  the  writ  appears  to  be  formal, 
but  the  whole  proceedings  being  in  the  name  of  those  parties, 
there  can  be  no  amendment,  and  it  is  necessary  to  inquire  whether, 
in  this  respect,  they  are  wrong ;  and  if  wrong,  fatally  so. 

When  individuals  fail  to  perform  the  duties  prescribed  by  our 
militia  laws,  they  commit  an  offence  against  the  public — against 
the  state.  It  is  a  violation  of  a  public  law,  and  therefore  the 
public  is  injured  by  it.  The  state,  therefore,  and  not  an  indi- 
vidual, bScomes  the  prosecutor  for  the  purposes  of  punishment, 
in  the  same  way  as  it  does  for  more  aggravated  offences.  To 
inflict  this  punishment  the  law  has  pointed  out  certain  officers, 
some  of  whom  determine  the  amount  of  the  penalty,  and  others 
perform  the  necessary  steps  for  its  recovery.  Among  these  is  the 
justice  of  the  peace.  He  performs  a  part  of  the  judicial  func- 
tions in  relation  to  this  matter,  a  part  having  been  previously 
performed  by  the  board  of  officers.  He  is  directed  in  certain 
cases  of  which  he  has  to  judge,  to  issue  a  warrant  for  the  collec- 
tion of  the  fines.  These  fines  are  imposed  for  the  violation  of  a 
law  of  the  state ;  they  are  in  favor  of  the  state,  and  to  be  col- 
lected for  its  use  and  through  its  agency. 

From  these  remarks  it  will  be  perceived  that  I  consider  the 

*841 


990  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

State  v.  Kirby. 

justice  as  a  judicial  officer  in  the  act  which  he  performs,  and  the 
.state  as  prosecutor  or  plaintiff  in  enforcing  these  penalties. 

If  an  individual  considers  himself  injured  by  illegal  proceed- 
ings and  seeks  the  process  of  this  court  for  relief,  he  does  not, 
in  doing  so,  change  the  parties  in  the  prosecution.  He  is  still 
one,  the  st-ite  is  still  the  other. 

But  the  state  never  becomes  defendant  in  prosecutions  of  this 
nature,  and,  therefore,  according  to  my  apprehension,  the  true 
mode  of  entitling  the  writ  is  A  S  ads.  The  State.  The  court 
itself  never  becomes  defendant  or  is  called  in  this  way  to  answer 
for  an  error  in  judgment. 

I  therefore  think  that,  upon  this  point,  the  writ  is  erroneous. 
It  has  a  wrong  defendant.  The  real  actor,  the  person  who  com- 
plains of  injury,  is  unknown  to  it. 

The  case  of  The  State  v.  Orphans  Court  of  Burlington  County 
was  mentioned  at  the  bar  as  proving  that  the  writ  might  be 
against  the  court,  but  that  case  is  well  remembered,  although  a 
circumstance  which,  perhaps,  ought  to  have  been  mentioned,  is 
omitted  in  the  report.  When  the  writ  was  moved  before  the 
court,  the  chief-justice  remarked  its  irregularity,,  but  the  parties 
stated  that  their  only  object  was  to  bring  up  the  division  of  the 
estate  and  that  all  exceptions  in  matters  of  regularity  and  form 
would  be  waived.  The  writ,  therefore,  went  in  that  shape. 

2.  Many  cases  are  united  in  the  same  writ.  This,  f  believe, 
must  be  considered  as  the  fact,  and  one  of  the  \vorst  features  of 
it  is  that  we  do  not  know  how  many.  It  is  "  William  Jones, 
Isaac  Jones  and  others."  Now,  this  warrant  is  to  be  considered 
as  several  as  well  as  joint.  Every  individual  stands  upon  his 
own  footing,  his  rights  rest  upon  the  facts  in  his  own  case.  If, 
then,  the  idea  before  urged  that  these  delinquents  are  parties  to 
the  writ  and  to  this  action  be  true,  they  are  parties  severally. 
Their  writs  ought  to  be  separate.  The  certiorari  ought  to  have 
brought  up  the  single  case  of  the  applicant.  If,  in  doing  this, 
it  was  necessary  to  bring  up  the  warrant  and  list  together,  still 
this  does  not  vary  the  matter.  The  warrant  is  not  to  be  alto- 
gether destroyed  because  of  irregularity  or  illegality  as  to  one 
person.  If,  in  assessing  taxes,  one  person  is  illegally  treated,  he 

*842 


2  SOUTH.]  FEBRUARY  TERM,  1820.  991 

State  t>.  Kirby. 


brings  up  his  case  alone  and  does  not  bring  up  and  destroy  the 
whole  assessment. 

3.  Irregularly  and  improperly  returned,  because  the  justice 
has  returned  the  warrant,  which,  by  his  own  statement,  had  been 
before  issued  by  him  and  was  not  then  in  his  hands,  being  in  the 
possession  of  the  constable.  The  amount  of  this  objection,  *if  I 
comprehend  it,  is  that  the  writ  ought  to  have  been  directed  to 
the  constable.  If  the  justice,  in  his  return,  has  done  more  than 
he  had  legally  the  power  to  do,  the  only  consequence  that  I  per- 
<*ive  is  to  disregard  the  return,  so  far  as  it  contains  too  much  ; 
but  I  do  not  perceive  that  it  destroys  the  writ ;  that  stands  though 
the  return  be  erroneous.  The  effect,  in  this  case,  would  probably 
be,  if  the  return  was  so  far  rejected  that  we  should,  upon  this 
return  alone,  be  unable,  on  the  hearing  on  the  merits,  to  adjudge 
on  the  rights  of  the  parties.  But  is  it  true  that  the  justice  ought 
not  to  have  had  this  warrant  in  his  hands  at  the  time  he  received 
the  cerliorari  f  I  think  not.  The  warrant  is  dated  January 
13th,  1818.  The  command  to  the  constable  is  to  make  return 
of  it  within  thirty  days.  The  cwtiorari  was  applied  for  the  last 
of  February,  much  more  than  thirty  days  after  its  date.  The 
return  of  the  justice  is  not  dated  but  is  made  to  May  term,  and  it 
is  therefore  manifest  that  he  either  had  or  ought  to  have  had  the 
warrant  in  his  possession  when  the  certiorari  was  served  upon 
him  and  the  return  made.  So  far,  then,  as  relates  to  the  war- 
rant, I  think  the  return  not  irregular.  So  far  as  relates  to  the 
list  of  delinquents,  the  justice  never  had  it,  and,  therefore,  his 
return,  as  to  that,  is  right,  What  advantage  the  party  may  de- 
rive from  the  fact  upon  the  principal  argument  is  yet  to  be  seen. 
It  can  be  of  no  avail,  on  the  motion,  to  quash  this  writ  for  ir- 
regularity. 

My  opinion,  then,  is  that  there  is  nothing  in  the  third  point, 
but  that  the  delinquents  are  improperly  united  and  that  the  writ 
and  all  the  proceedings  are  in  the  name  of  improper  parties  and 
ought  to  be  quashed. 

Motion  overruled. 
*84S 


"CASES  DETERMINED 


IN  THE 


SUPREME  COURT  OF  JUDICATURE 


OF  THE 


STATE  OF   NEW  JERSEY 

MAY  TERM,  1820. 


JAMES  MILLER  v.  NOBLE  DOOLITTLE. 

Service  of  summons  in  forcible  detainer,  (a) 


This  was  a  complaint  of  forcible  entry  and  detainer  for  a  house 
in  Camden.  The  sheriff  deputed  Andrew  Ware  to  serve  the 
summons.  He  returned  it  with  the  following  endorsement: 
"  This  writ  was  served  Saturday,  July  24th,  A.  M.,  by  leaving  a 
copy  fastened  to  the  door  of  the  house  which  is  said  to  be  in 
possession  of  defendant,  as  he  was  not  therein.  Served "  &c. 
The  other  proceedings  and  judgment  being  regular,  but  in  the 
absence  of  the  defendant,  Woodruff  objected  to  this  service  as 
insufficient.  Armstrong  answered.  And  the  court,  for  this  de- 
fect, reversed  the  proceedings. 

(a)  Leonard  v.  Stout,  7  Vr.  S7S ;  see  Dm  v.  Fen,  5  Hal.  8S7  ;  Derrickson  v. 
White,  S  Vr.  1S7 ;  Polhemua  v.  Perkins,  S  Or.  4S5. 

*845  63  993 


994  NEW  JERSEY  SUPREME  COURT.     [5  LAW 

Cory  v.  Lewis. 


SHARP  and  TUTTLE  v.  YOUNG  and  YOUNG. 

Affidavit  is  required  upon  confessions  of  judgment,  upon  bonds  and  obliga- 
tions, but  in  no  other  cases,  (a) 


Vanarsdale  moved  for  leave  to  enter  judgment  upon  a  warrant 
of  attorney,  unaccompanied  by  bond,  and  without  affidavit,  the 
statute  requiring  the  affidavit  upon  all  confessions  of  judgment 
having  been  repealed,  and  the  affidavit  being  now  required  only 
in  cases  of  judgments  upon  bonds  and  obligations,  other  cases 
being  left  as  they  were  before  the  passage  of  the  statute  requiring 
the  affidavit.  See  statute  February  24th,  1820. 

COURT.  Let  the  judgment  be  entered  upon  the  warrant  of 
attorney,  without  affidavit. 


*JONATHAN  CORY  v.  LAWRENCE  LEWIS. 

If  clerk  neglect  to  advertise  the  attachment  until  second  term,  the  writ  will 
not  be  quashed  where  the  other  proceedings  have  been  regular.  (6) 


On  attachment. 

The  writ  of  attachment  was  returnable  to  December  term,  1819, 
of  the  court  of  common  pleas  of  Morris,  at  which  term  the  de- 
fendant in  attachment  was  three  times  called,  and  made  default, 
his  default  recorded,  and  auditors  -were  appointed  by  the  said 

(a)  See  Acts  of  1829,  92 ;  Parker  v.  Origgs,  1  South.  163;  diver  v.  Applegate, 
ante  479;  Woodward  ads.  Cook,  1  Hal,  160;  Burroughs  v.  Condit,  1  Hal  300; 
Latham  v.  Lawrence,  6  Hal.  322  ;  Evans  v.  Adams,  3  Or.  373  ;  Melville  v.  Brown, 
1  Harr.  363;  Reading  v.  Reading,  4  Zab.  358;  Dean  v.  Thatcher,  3  Vr.  470. 

(6)  Taylor  v.  Woodward,  5  Hal.  4;  Ayers  v.  Bartlet,  2  Or.  332  ;  Qaddis  ads. 
Howell,  2  Vr.  315. 

*846 


2  SOUTH.]  MAY  TERM,  1820.  995 

Cory  v.  Lewis. 

•court.  At  March  term  application  was  made  in  behalf  of  John 
Wade,  Jeptha  Baldwin  and  others,  to  be  admitted  creditors  of 
the  said  Lewis  under  the  attachment,  and  they  were  admitted 
accordingly.  The  auditors  appointed  at  the  last  term  did  not 
make  their  report ;  .and,  one  of  them  having  removed  out  of  the 
county  of  Morris  to  the  county  of  Essex,  the  court,  upon  appli- 
cation made  in  behalf  of  the  plaintiff  in  attachment,  appointed 
another  auditor  in  his  place,  (a) 

The  defendant  then  filed  special  bail,  and  thereupon,  by  his 
counsel,  moved  the  court  to  set  aside  the  said  attachment  and  the 
proceedings  thereon  because  the  clerk  of  the  court  had  omitted 
to  advertise  the  said  attachment  according  to  the  directions  of  the 
act  of  the  legislature,  and  there  did  not  appear  to  have  been  any 
advertisement  whatsoever  made  of  the  said -writ  of  attachment. 

After  hearing  the  arguments  of  counsel  this  court  ordered  and 
adjudged,  for  the  reasons  assigned  by  the  defendant's  counsel, 
that  the  writ  of  attachment  and  all  proceedings  thereon  had,  be 
vacated,  set  aside  and  for  nothing  holden. 

Upon  application  in  behalf  of  the  plaintiff  the  court  made  and 
allowed  a  state  of  the  case  containing  the  above  facts,  and  a 
certiorari  was  brought. 

Vanarsdah  and  Halsey  argued  that  the  decision  of  the  com- 
mon pleas  was  against  law,  and  read  Pat.  296  §§  15,  16,  32;  2 
£in.  453  and  5  Bin.  389. 

Attorney- General  and  Chetwood  answered  and  relied  on  the 
fifteenth  and  sixteenth  sections  of  the  statute.  Pat.  296. 

THE  COURT  reversed  the  judgment  of  the  pleas  and  directed 
the  cause  to  be  continued  and  further  proceedings  to  be  had  in 
this  court. 

(o)  Anonymous,  1  Harr.  S55, 


996  NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Winans  v.  Brookfield. 


*JOHN  C.  WINANS  and  SAMUEL  WINANS  v.  AARON  BROOK- 
FIELD,  (a) 

1.  Evidence. 

2.  Damages. 


In  case. 

This  was  an  action  on  the  case  for  overflowing  lands,  tried  be- 
fore the  chief-justice  at  the  Essex  circuit  in  September,  1819. 
The  declaration  was  in  the  common  form ;  the  lands  situated  on 
Rahway  river ;  the  pleas  not  guilty  and  liberum  tenementum  with 
notice  &C,  The  plaintiffs,  who  were  infants,  showed  title  to  the 
lands  by  descent  from  their  father,  and  proved  that  since  the  dam 
was  built  by  defendant  in  1815  or  L816  about  three  acres  of  the 
land  had  been  overflowed,  so  as  to  injure  and  destroy  grass,  trees 
&c.  to  the  value  of  $300,  in  the  opinion  of  some  of  the  witnesses. 
That  in  April,  1809,  the  administrators  of  plaintiff's  father  ob- 

(a)  An  administrator  may  purchase  the  real  estate  of  his  intestate  at  a  ju- 
dicial sale,  but  if  collusion  be  proved  the  deed  is  voidable,  Den,  Rickey  v. 
Hillman,  2  Hal.  180 ;  Runyan  v.  Newark  Rubber  Co.,  4  Zab.  475 ;  Mulford  v. 
Bowen,  4  Hal.  Ch.  751,  1  Stock.  797;  Obert  v.  Obert,  2  Stock.  98,  1  JBeao.  423  - 
Mulford  v.  Minch,  3  Stoek.  16;  Culver  v.  Culver,  3  Stock.  215  ;  Wortman  v.  Skin- 
ner, 1  Beas.  358;  Huston  v.  Cassedy,  2  Beas.  228;  S.  C.,  1  McCart.  320  /  How- 
ell  v.  Sebring,  1  McCart.  85 ;  Johns  v.  Norris,  7  C.  E.  Or.  102,  March  Term, 
1875,  Court  of  Errors;  Smith  v.  Drake,  8  (J.  E.  Or.  302.  An  executor  or  trustee 
cannot  sell  the  trust  property  to  himself,  Arrowsmith  v.  Van  Harlingen,  Coxe 
26  ;  Den  v.  Wright,  2  Hal.  175  ;  Den,  Obert  v.  Hammel,  3  Harr.  74  ;  Winter  v. 
Geroe,  1  Hal  Ch.  319;  Williamson  v.  Johnson,  I  Hal.  Ch.  537 ;  Scott  v. 
Gamble,  1  Stock.  218 ;  Holcomb  v.  Holcomb,  3  Stock.  281- ;  Trenton  Banking  Co. 
v.  Woodruff,  IQr.Ch.  118 ;  Hurter  v.  Spengeman,  2  C.  E.  Or.  185;  Stoats  v. 
Bergen,  2  C.  E.  Or.  297  ;  Booraem  v.  Wells,  4  C.  E.  Gr.87;  Blauvelt  v.  Acker- 
man,  5  C.  E.  Or.  141 ;  Wright  v.  Smith,  8  C.  E,  Or.  106  ;  Colgate  v.  Colgate,  8 
C.  E.  Or.  372 ;  Romaine  v.  Hendricknon,  9  C.  E.  Or.  2S2  ;  see  Earl  v.  Halsey, 
1  McCart.  332;  Den  v.  McKnight,  6  Hal.  385 ;  Shepherd  ads.  Hedden,  5  Dutch. 
338,  per  Green,  C.  J. ;  Runyon  v.  Newark  India  Rubber  Co.,  4  Zab.  468.  But 
the  title  of  a  subsequent  innocent  holder  is  not  affected,  Scudder  v.  Stout,  2' 
Slock.  377 ;  Booraem  v.  Wells,  4  C.  E.  Or.  87;  Johns  v.  Norris,  7  C.  E.  Gr. 
102  ;  see  Brown  v.  Folwell,  S  Hal.  Ch.  593. 

*847 


SOUTH.]  MAY  TERM,  1820.  997 


Winans  r.  Brookfield. 


tained  an  order  of  the  orphans  court  to  sell  seven  acres  to  mi-*- 
$78,  a  deficiency  in  the  personal  estate ;  that  one  of  the  adminis- 
trators bid  at  the  sale  and  the  land  was  struck  off  to  him,  and  he 
afterwards  sold  to  defendant  for  $500,  the  administrator  repre- 
senting the  land  to  be  valuable  on  account  of  the  mill-seat  upon 
it.  The  defendant  proved  the  injury  to  be  $60  or  $70  or  $90  ; 
that  there  was  one  or  one  and  a  quarter  acres  overflowed,  and 
that  the  dam  had  been  raised  about  eighteen  or  twenty  inches  by 
the  defendant,  which  occasioned  the  overflowing.  The  defend- 
ant offered  to  read  the  deed  from  the  administrators  to  him  for 
the  land,  to  which  the  plaintiffs  objected,  because  it  appeared 
upon  the  face  of  the  deed  that  the  administrators  Tiad  not  pur- 
sued but  exceeded  their  authority ;  that  one  of  them  bid  off  the 
land  and  then  conveyed  to  defendant  without  any  public  sale. 
The  chief-justice  overruled  the  deed.  The  jury  found  a  verdict 
for  $269  damages. 

The  rejection  of  the  deed  and  the  amount  of  damages  were 
the  reasons  filed  for  setting  aside  the  verdict. 

Attorney-General.  The  deed  was  not  to  be  rejected  because 
one  of  the  administrators  bid ;  this  is  an  exception  only  in  a 
oourt  of  equity.  14  Johns.  407;  2  Johns.  Ch.  Cos.  252,  263. 
The  deed  was  really  made  to  the  highest  bidder,  the  purchaser, 
and  there  was  no  pretence  of  fraud ;  the  heirs  received  the  money. 
Besides,  the  lot  was  bought  for  a  mill-seat,  as  appears  by  the 
*deed  itself,  and  it  follows  that  the  purchaser  had  a  right  to  use 
it  for  that  purpose,  though  he  did  overflow  the  adjoining  land. 
Again  :  the  deed  was  proper  evidence  in  mitigation  of  damages, 
and,  by  its  rejection,  they  were  made  excessive.  That  they  are 
.so  is  manifest  from  the  whole  evidence. 

Scudder,  in  answer.  1.  The  seller  cannot  be  the  purchaser. 
£w<7.  Vend.  393;  3  Br.  Ch.  120  ;  8  Br.  Part.  63.  2.  A  man 
cannot  make  a  deed  to  himself.  3.  The  statute  requires  the 
highest  bidder  to  be  the  purchaser;  this  must  be  strictly  fol- 
lowed by  the  administrator.  He  must  pursue  his  power  like  an 
attorney.  Pow.  on  Pow.  78,  83.  4.  If  the  deed  was  valid  it 

*848 


998  NEW  JERSEY  SUPREME  COURT.     [5  LA^ 

Banks  v.  Murray. 

was  inadmissible,  because  unconnected  with  the  issue.  The 
administrator  could  only  convey  title  to  the  land,  not  a  right  to- 
use  it  so  as  to  injure  and  destroy  the  remainder  of  the  estate. 
Even  if  the  intestate  had  sold,  the  buyer  would  have  no  such 
right.  And  the  deed  could  not  support  the  plea  of  liberum 
tenementum,  because  the  complaint  was  for  injury  done  to  other 
lands,  not  those  in  the  deed. 

The  damages  were  not  excessive ;  not  equal  to  what  was  sworn 
to. 

But  Brookfield,  the  defendant,  is  dead ;  the  action  does  not 
survive  against  his  administrators,  and  the  effect  of  setting  aside 
the  verdict  would  be  to  deprive  the  plaintiff  altogether  of  its 
benefit.  This  the  court  cannot  do.  Pat.  146  §  1,147  §  6;  1 
Saun.  217  n.  1;  1  Bur.  147. 

THE  COURT  discharged  the  rule,  and  directed  judgment  to  be 
entered  on  the  verdict.  The  deed  could  have  no  operation  upon 
the  question  of  damans.  If  it  be  considered  a  valid  deed,  free 
from  legal  exception,  it  can  give  the  defendant  no  right  to  over- 
flow the  adjoining  lands — lands  not  contained  within  it.  And 
although  the  damages  seem  high,  yet,  as  some  of  the  witnesses- 
swore  to  more  than  were  given,  and  as  the  jury  were  the  best 
judges  of  their  amount,  the  verdict  cannot  be  set  aside  on  that 
ground. 

Rule  discharged. 


*THOMAS  BANKS  et  al.  v.  CUPID  MUKRAY  et  al. 

Complaint  in  forcible  entry  and  detainer  must  set  out  the  estate  of  com- 
plainant, and  the  place  where  premises  are  situate,  (a) 

(a)  Van  Auken  v.  Decker,  Perm.  *108 ;  Barnes  v.  Nicholson,  Penn.  *326  ,- 
Wall  v.  Hunt,  4  Hal.  37  ;  Applegate  v.  Applegate,  1  Harr.  321 ;  Corlies  v.  Cor  lies,. 
2  Harr.  167;  see  Allen  v.  Smith,  7  Hal.  199;  Pollen  v.  Boney,  1  South.  125  r 
Mairs  v.  Sparks,  ante  513. 

*849 


2  SOUTH.]  MAY  TERM,  1820.  999 

Banks  r.  Murray. 
On  certiorari. 

This  was  an  action  of  forcible  entry  and  detainer.  The  com- 
plaint sets  out  that  Murray  and  others,  the  plaintiffs  below, 
trustees  of  the  people  of  color  belonging  to  the  Methodist  Society 
at  Snowhill,  on  the  1st  of  June,  1818,  at  the  township  of  New- 
town,  in  the  county  of  Gloucester,  were  possessed  of  a  certain 
meeting-house  and  lot  of  ground  containing  two  acres,  there 
situate,  and  that  Banks  and  the  others,  on  the  said  1st  of  June, 
at  &c.,  did  enter  into  and  upon  the  said  meeting-house  and  lot 
of  ground,  and  detain  and  hold  the  same  with  force  &c.  The 
defendants  pleaded  not  guilty,  and  that  they  had  been  in  the 
peaceable  possession  of  the  premises  for  three  years  last  past. 

At  the  trial  it  appeared  that  the  meeting-house  was  situated  in 
the  township  of  Gloucester.  Of  this  fact  there  was  no  contra- 
diction of  evidence.  The  judgment  was  in  favor  of  the  com- 
plainants. . 

Two  reasons  were  principally  relied  on  by  Armstrong,  for 
plaintiff,  for  the  reversal  of  the  proceedings:  1.  That  the  com- 
plaint did  not  set  out  the  estate  of  the  complainants  in  the  prem- 
ises. Pat.  291;  Penn.  108;  8  Johns.  464.  2.  That  the  prem- 
ises were  wrongly  described  in  the  complaint  in  this,  that  they 
were  charged  to  lie  in  Newtown,  whereas  they  lie  in  Gloucester 
— the  place  being  a  substantial  part  of  the  offence.  Str.  59o. 
Woodruff  replied,  for  defendant,  that  the  action  was  not  confined 
to  individuals,  but  was  also  open  to  corporations ;  that  these 
plaintiffs,  not  having  an  estate  in  fee  or  for  a  definite  number  of 
years,  could  set  out  no  other  estate  than  they  have  done ;  that 
this  action  was  originally  criminal  in  its  nature,  and  still  remained 
partly  so ;  and,  therefore,  the  place  was  not  material  (2  Hawk. 
337) ;  and  that  the  complaint  being  made  the  justice  could  not 
nonsuit  for  a  variance  between  it  and  the  case  as  proved,  but 
must  try  the  cause  and  receive  the  verdict. 

The  court  adjudged  that  both  reasons  were  well  founded,  and, 
therefore,  that  judgment  must  be  reversed. 


1000          NEW  JERSEY  SUPREME  COURT.     [5  LAW 


Den  v.  Franklin. 


*THB  STATE  v.  LAWRENCE  and  others. 

Where  the  surveyors  have  not  taken  oath  court  ought  to  grant  rule  to  show 
cause  why  return  should  not  be  set  aside,  (a) 


Certiorari  to  the  common  pleas  of  Salem  to  bring  up  the 
return  of  a  private  road  and  proceedings  thereon.  Upon  the 
road  being  laid  out  and  the  return  filed  a  caveat  was  also  duly 
filed.  At  the  next  term  of  the  court  the  caveator  applied  for  a 
rule  to  show  cause  why  the  return  should  not  be  set  aside  upon 
the  following  reasons:  1.  That  two  of  the  surveyors  had  not 
taken  the  oath  required  by  law.  2.  That  the  surveyors  did  not 
pursue  the  courses  and  distances  in  the  application.  The  court 
refused  the  rule,  and  ordered  the  return  to  be  recorded ;  where- 
upon this  writ  was  prosecuted,  and  Jeffers  moved  that  the  pro- 
ceedings of  the  court  be  reversed  and  the  return  set  aside  for  the 
reasons  filed  in  the  pleas,  and,  also,  because  the  court  refused  to 
grant  the  rule  applied  for  by  the  caveator. 

BY  THE  COURT.  The  common  pleas  certainly  erred  in  refus- 
ing the  rule  asked  for.  The  first  reason  assigned  has  been  re- 
peatedly adjudged  sufficient  to  set  aside  the  return.  The  survey- 
ors must  take  the  oath  required  by  the  statute  before  they  act. 
The  return  of  the  road  must,  therefore,  be  set  aside. 


DEN,  ex  dem.  MARY  HOOVER,  v.  FRANKLIN  and  SHARP. 

1.  If  plaintiff  do  not  submit  to  nonsuit  ordered  by  the  judge,  but  receive 
verdict  in  his  favor,  court  will  amend  the  postea  and  set  aside  the  verdict  on 
motion,  although  defendant  proceeded  to  try  the  cause.  (6) 

(a)  Matter  of  Public  Rood,  1  South.  B98  (a). 

(b)  Rose  v.  Parker,  ante  780  (b) ;  Den  v.  Hull,  4  Hal.  283;  Meadow  Co.  v. 
Christ  Church,  3  Or.  54. 

*850 


2  SOUTH.]  MAY  TERM,  1820.  1001 


Den  v.  Franklin. 


2.  Time  of  demise  may  be  amended  after  nonsuit  on  the  ground  that  lessor 
•was  feme  covert  at  the  time  of  the  demise,  (a) 


At  the  circuit  in  Salem,  November,  1819,  this  cause  was  tried 
before  Justice  Rossell.  After  the  plaintiff  had  closed  his  evidence 
the  defendant  moved  that  he  be  nonsuited,  because  at  the  time 
when  the  demise  was  laid  the  lessor  was  a  married  woman.  The 
court  directed  the  plaintiff  to  be  called,  but  the  plaintiff  answer- 
ed, and  claimed  the  right  to  receive  a  verdict.  The  defendant 
then  proceeded  and  laid  his  evidence  before  the  jury;  the  cause 
was  tried,  and  verdict  was  given  for  the  plaintiff. 

On  the  coming  in  of  the  posted,  rule  to  show  cause  for  a  new 
trial  was  granted,  and  notice  was  given  by  the  plaintiff  to  de- 
fendant that  the  court  would  be  moved  for  leave  to  amend  the 
time  in  the  demise.  Both  motions  were  set  down  for  hearing  at 
the  same  time. 

Coxe,  for  defendant.  The  verdict  having  been  taken  against 
the  opinion  of  the  court,  cannot  stand.  Wall  answered  for 
plaintiff. 

*KIRKPATRICK,  C.  J.,  and  ROSSELL,  J. 

The  court  cannot  permit  a  party  to  disregard  the  order  for  a 
nonsuit  and  receive  any  benefit  therefrom.  The  verdict  must 
be  set  aside  and  considered  as  if  not  taken.  The  posted  must 
be  amended  so  as  to  return  the  nonsuit,  and  the  case  must  stand 
here  upon  the  merits  of  the  nonsuit. 

SOUTHARD,  J.,  thought  the  true  rule  to  be  that  where  a  non- 
suit was  directed,  the  plaintiff  might  or  might  not  answer.  A 
nonsuit  was  a  voluntary  thing.  If  he  did  answer,  and  the  de- 
fendant relied  upon  the  opinion  of  the  court  and  did  not  give 
-evidence,  the  plaintiff  proceeded  at  his  peril.  If  the  verdict  \\  ;i.s 

(a)  Den,  Denny  v.  Smith,  Penn.  *711 ;  Anonymous,  S  Hal.  S66 ;  Helton  v. 
Ayres,  7  Hal.  63  ;  Den  v.  Snowhill,  1  Or.  S3  ;  Den,  Bromon  v.  Taylor,  S  Gr.  SI , 
Den,  Bray  v.  McShane,  1  Or.  35 ;  Den  v.  Lanning,  4  Hal.  £54 ;  Vreeiand  v 
Eyerson,  4  Dutch.  305  ;  see  Den  v.  Folger,  Spen.  299. 

*851 


1002          NEW  JERSEY  SUPREME  COURT.      [5 


Den  v.  Franklin. 


for  him,  it  should  be  set  aside,  on  motion,  and  without  argument,, 
because  the  defendant  had  made  no  defence,  under  the  advice  of 
the  court.  But  if  the  verdict  was  against  the  plaintiff,  he  should 
be  without  remedy.  The  court  would  not  interfere  to  relieve- 
him  from  a  verdict  which  he  had  sought  against  its  opinion. 
But  if,  when  the  plaintiff  determines  to  receive  the  verdict,  the 
defendant  does  not  rely  on  the  opinion  of  the  court  but  goes  be- 
fore the  jury,  he  puts  himself  on  the  strength  of  his  case  and 
must  stand  or  fall  by  it.  He  must  depend  upon  the  merits  of 
his  cause  alone.  And  the  court,  in  this  case,  ought  to  consider 
the  rule  for  a  new  trial,  as  if  no  order  for  nonsuit  had  been 
given. 

The  court  directed  the  propriety  of  the  nonsuit  to  be  argued. 
Wall  then  moved  to  amend  the  declaration  by  "  striking  out  the 
time  of  the  demise  and  ouster  therein  contained,  and  inserting  in 
lieu  thereof,  as  to  the  demise,  the  words  '  first  day  of  December ; ' 
and  in- lieu, of  the  time  of  -  commencing  said  demise,  the  thirtieth 
day  of  November ;  and  in  lieu  of  the  time  of  ouster,  the  words 
'  second  day  of  the  same  month  of  December.'  And  also  in  re- 
spect to  the  term,  by  striking  out  the  word  ten  and  inserting  in 
place  thereof  the  word  twenty" 

Coxe  objected  that  this  motion  could  not  be  heard  at  this  stag*, 
of  the  controversy  until  the  other  question  was  disposed  of.  But 
the  court  said  that  a  motion  for  amendment  might  be  heard  at 
any  time  and  at  almost  any  stage  in  the  progress  of  a  cause. 

Wall  and  L.  H.  Stockton.  The  object  of  the  amendment  is  to- 
change  the  date  of  the  lease,  because  the  lessor  was  a  married 
woman  at  that  time.  Such  amendment  may  be  made.  4  Bur. 
244^  ;  Run.  121,  229  ;  2  Perm.  711 ;  2  Ora.  478  ;  3  Wil.  273,- 
3  Bur.  1243;  2  Sir.  807  ;  2  Bur.  1159;  3  Bur.  1256,  1294. 

*Coxe  and  R.  Stockton.  Amendments  are  the  creation  of 
modern  times,  and  always  made  on  the  principle  of  furthering: 
justice.  They  are  allowed  only  where  the  title  is  defectively  set 
out,  not  where  the  title  is  defective.  2  Bur.  667,  1161 ;  2  Sell, 

*852 


2  SOUTH.]  MAY  TERM,  1820.  1003 

Craig  ».  Berry. 

169;  WiUett  183,  830  ;  1  Yeates  551 ;  11  Johns.  1&3  ;  Chip. 
Vt.  Rep.  69.  The  application  here  is  to  change  the  whole  decla- 
ration, and,  therefore,  ought  to  have  been  made  in  reasonable 
time,  not  at  so  late  a  period  as  the  present.  These  amendments 
are  confined  to  matters  of  form,  but  time  is  not  always  so.  It  is 
sometimes,  as  in  the  present  case,  essential  to  the  title  of  the 
plaintiff.  On  it  depends  the  right  of  making  the  lease.  At  the 
time  laid  there  was  no  title.  Amend  it  as  desired  and  the  title 
may  be  good. 

BY  THE  COURT.  Let  the  declaration  be  amended  in  the  par- 
ticulars mentioned,  upon  payment  of  the  costs  of  the  said  amend- 
ment. 


DAVID  S.  CRAIG  v.  JOHN  A.  BERRY. 

Court  cannot  entertain  suit  on  habeas  corpus  unless  bail  be  filed,  (a) 


This  case  was  brought  up  by  habeas  corpus  from  the  Bergen, 
pleas.  No  bail  being  filed,  Hornblower,  for  defendant  here,  the 
plaintiff  below,  who  desired  that  the  cause  might  be  continued 
and  tried  in  this  court,  prayed  leave  to  file  a  waiver  of  bail. 
But— 

BY  THE  COURT.  This  cannot  be  done  under  the  statute.  If 
bail  be  not  filed  the  cause  must  be  remanded. 

(a)  Anonymous,  Perm.  *641 ;  Marcellis  v.  The  Hamburgh  Turnpike  Co.,  Perm. 
*948 ;  Dickinson  ads.  Stale  Bank,  1  Hear.  S54;  Morris  Canal  ads.  Vanatta,  * 
Harr.  159;  see  Sneed  ads.  Wallcn,  ante  689. 


1004          NEW  JERSEY  SUPREME  COURT.      [5  LAW 


Mead  v.  Crane. 


PETER  MEAD  v.  BENJAMIN  CRANE. 


1.  Warranty,  (a) 

2.  Nonsuit. 


The  action  was  founded  on  an  express  warranty  in  the  sale  of 
a  horse.  A  rule  was  served  on  the  justice  to  certify  certain  mat- 
ters, and  in  his  reply  to  the  rule  he  says  there  was  no  proof  that 
Mead  warranted  the  horse  to  be  sound  at  the  time  of  the  sale  or 
that  he  knew  he  was  unsound  ;  that  the  defendant  moved  for  a 
nonsuit  because  there  was  no  evidence  to  prove  the  warranty, 
but  he  overruled  the  motion  "  and  let  the  cause  go  to  the  jury,  as, 
in  his  opinion,  it  would  prevent  any  further  litigation  between 
the  parties  "  &c.  The  judgment  was  reversed  for  the  error  of  the 
justice. 

(a)  See  Beninger  v.  Corwin,  4  Zab.  257 ;  Smalley  v.  Hendrickson,  5  Dutch. 
•371;  Wolcott  v.  Mount,  7  Vr.  262;  Eenton  v.  Maryott,  6  C.  E.  Or.  123. 


"APPENDIX. 


The  reporter  thinks  it  necessary  to  add  a  memorandum  of  such 
decisions  as  have  been  made  in  the  court  of  appeals,  either  af- 
firming on  reversing  the  judgments  of  the  supreme  court  in  case* 
reported  by  him.  That  court  finally  and  without  appeal  settles 
the  law,  and  where  the  decisions  of  the  supreme  court  have  been 
reversed  the  reports  would  lead  into  error  if  these  reversals  were 
not  stated.  It  is,  however,  to  be  regretted  that  the  court  of  ap- 
peals seldom  publicly  assign  any  reason  for  their  judgments  or 
enter  upon  record  the  names  of  the  members  voting  either  for 
affirmance  or  reversal,  and  this  is  the  more  to  be  lamented  be- 
cause, in  almost  every  case,  there  are  several  reasons  argued,  and 
the  inferior  judicatories  are  left  altogether  in  doubt  whether  the 
decision  was  founded  on  one  or  all.  They  are  obliged  to  take  the 
law  from  the  decision  and  yet  are  not  informed  why  it  was  made 
or  on  what  it  rests. 


THOMAS  GIBBONS  v.  AARON  OGDEN. 
In  error. 

For  the  pleadings  and  decisions  of  this  case  in  the  supreme 
court,  see  ante,  page  518.  The  cause  was  tried  before  the  chief- 
justire  at  the  September  circuit,  1818,  and  verdict  for  $5,000. 
Upon  the  coming  in  of  the  postea,  Halsey,  attorney  for  defend- 
ant, moved  a  rule  to  show  cause  why  the  verdict  should  not  be 
set  aside  and  a  new  trial  granted.  R.  Stockton,  for  plaintiff,  ob- 
jected that  the  defendant  had  taken  bills  of  exception  at  the 
circuit,  as  the  foundation  of  a  writ  of  error,  and  was,  therefore,  not 
entitled  to  the  rule  ;  he  could  not  have  both.  Vanarsdale,  for 
*853  1005 


1006  APPENDIX.  [5  LAW 

Gibbons  v.  Ogden. 

defendant,  answered  that  it  was  not  intended  to  have  the  rule 
and  writ  of  error  for  the  same  reasons,  but  that  the  objections  to 
the  trial  were  many,  and  defendant  was  not  ready  to  say  upon 
which  *he  would  argue  the  rule  and  upon  which  he  would  rely 
upon  the  writ.  The  court  stated  that  defendant  was  not  entitled 
to  both  upon  the  same  reasons,  and  that  the  rule  to  show  cause 
would  be  granted  only  upon  the  condition  that  the  defendant  did 
not  assign  the  same  reasons  in  the  two  courts,  but  as  he  claimed 
time  to  advise  on  the  course  it  was  his  interest  to  take,  time  for 
thirty  days,  the  period  allowed  by  law  for  filing  reasons,  was 
given  him  to  determine  whether  he  would  pursue  the  bills  of  ex- 
ception and  on  what  grounds. 

The  following  statement  was  made  by  the  chief-justice  and  ac- 
companied the  bills  of  exception,  and  it  was  agreed  by  the  parties 
that  it  should  be  considered  as  a  bill  of  exception : 

"  When  this  cause  was  called  for  trial  and  the  venire  was  re- 
turned, the  defendant,  by  his  counsel,  objected  to  the  lawfulness 
of  the  said  venire,  alleging  that  the  name  of  the  clerk  of  the 
supreme  court  subscribed  thereto  was  not  in  the  proper  hand- 
writing of  the  said  clerk,  and  that  the  seal  affixed  thereto  was 
not  the  proper  seal  of  the  said  court,  but  that  the  name  of  the 
said  clerk  was  in  the  proper  handwriting  of  the  attorney  for  the 
plaintiff,  and  that  the  seal  affixed  was  the  proper  seal  of  the  said 
attorney.  The  counsel  for  the  defendant  at  the  same  time  ad- 
mitting that  it  had  been  the  uniform  practice  for  the  attorneys 
of  the  said  court,  by  the  permission  of  the  clerk,  to  sign  and 
seal  writs  of  every  description,  issuing  out  of  the  said  court,  on 
their  application,  in  the  manner  in  which  this  had  been  done. 

"Upon  this  objection  being  raised  it  was  doubted  by  the 
court  whether  the  facts  alleged  could  lawfully  be  determined  by 
the  inspection  of  the  judge;  and  still  more,  whether  the  same 
could  be  lawfully  proved  by  the  testimony  of  witnesses  from 
their  knowledge  of  the  writing  and  of  the  seal.  But  without 
giving  any  opinion  upon  either  of  these  points,  it  was  stated  by 
the  court  that  care  had  been  taken,  at  an  early  period,  to  look 
into  this  practice ;  that  it  had  been  found,  both  from  ancient 
entries  and  from  the  information  of  practitioners,  now  long  since 

*854 


2  SOUTH.]  APPENDIX.  1007 

Gibbons  r.  Ogden. 


dead,  that  froji  the  earliest  establishment  of  the  supreme  court, 
under  the  colonial  government,  it  had  been  customary  for  the 
clerk,  for  the  greater  convenience  of  suitors,  to  give  copies  of  the 
seal  not  only  to  the  judges  of  the  said  court  but  also  to  cer- 
tain of  the  attorneys  thereof,  and  sometimes  to  others  of  the 
magistracy  of  the  colony,  in  convenient  places,  with  authority 
to  seal  writs  &c.,  *and  to  subscribe  his  name;  that  this  confi- 
dence had,  in  process  of  time,  been  extended  to  all  the  attorneys 
of  the  said  court  in  good  standing  at  the  bar,  and  had  been  con- 
fined to  them  alone,  so  that  at  last  it  became  a  custom  for  all 
attorneys,  regularly  licensed  by  the  governor  and  duly  sworn  in, 
to  sign  and  seal  writs  and  other  process  in  the  clerk's  name, 
unless  by  him  expressly  prohibited ;  that  this  custom  had  been 
established  before  the  revolution  and  had  continued  in  East 
Jersey,  at  least,  without  interruption,  down  till  the  present  day  ; 
that  when  the  present  rules  of  the  supreme  court  were  prepared 
there  was  one  specially  upon  this  subject,  but  that  upon  being 
subjected  to  the  inspection  of  the  then  clerk  and  of  the  leading 
counsel  at  the  bar,  it  had  been  thought  best  to  leave  the  practice, 
in  this  respect,  as  it  then  stood,  and  it  was  so  left  accordingly  ; 
and  that  from  this  view  of  the  subject,  even  if  the  fact  \vriv 
conceded,  we  could  not,  at  a  circuit  court,  yield  to  the  objection 
now  raised  by  the  defendant ;  that  however  proper  it  might  be 
for  the  justices  of  the  supreme  court,  at  bar,  or  even  for  the 
legislature,  to  look  into  this  practice  as  a  matter  touching  the 
general  administration  of  justice,  yet  that  the  objection  now 
raised  upon  it,  in  the  mouth  of  the  defendant,  was  merely  cap- 
tious. 

"  Upon  the  transcript  of  the  pleadings  being  presented  and 
inspected,  the  same  objection  was  made  to  that  and  overruled 
upon  the  same  reason. 

"  To  these  opinions  of  the  court  no  bills  of  exception  were 
then  prayed  or  taken,  nor  when  the  general  bill  was  taken  upon 
the  defendant's  motion  for  a  nonsuit  being  overruled,  was  this 
matter  mentioned  or  in  any  way  included  ;  but  after  the  evi»K-iuv 
was  given  in,  and  before  the  summing  up  by  the  counsel,  the 
counsel  of  the  defendant  applied  to  the  judge  and  requested  that 

*855 


1008  APPENDIX.  [5  LAW 

Gibbons  v.  Ogden. 

a  bill  of  exception  might  be  sealed  as  to  those  opinions  also. 
But  inasmuch  as  it  was  doubted  whether  those  afforded  proper 
matter  for  a  bill  of  exception,  being  only  a  proceeding  prepara- 
tory, and  not  at  all  touching  or  in  any  way  affecting  the  ground 
of  the  action  itself,  it  was  thought  safest  merely  to  certify  the 
fact  and  the  course  of  proceeding  as  it  took  place,  so  that  if 
it  should  be  thought  that  a  bill  of  exception  lies  in  such  cases, 
this  may  be  considered  as  such  bill,  and  if  not,  that  it  may  be 
made  use  of  on  a  motion  for  a  new  trial,  or  otherwise,  as  may 
be  thought  proper." 

*The  plaintiff  gave  his  parol  evidence  and  then  offered  the 
hand-bill ;  this  was  objected  to  but  admitted,  and  a  bill  of  ex- 
ception sealed.  The  hand-bill  was  read,  and  then  plaintiff 
rested ;  whereupon,  defendant  moved  for  a  nonsuit,  which,  being 
refused,  another  bill  was  sealed.  The  defendant  then  gave  his 
evidence.  After  which  the  plaintiff  offered  to  prove  the  quo 
animo  and  malicious  intent  with  which  the  trespass  was  com- 
mitted ;  which,  being  objected  to  and  admitted,  a  third  bill  was 
sealed. 

The  evidence  upon  the  trial  of  this  cause  having  been  closed, 
and  the  counsel  on  both  sides  having  finished  their  argument 
thereupon — 

"  The  court  gave  it  in  charge  to  the  jury  that  this  action  not 
only  in  itself,  but  also  in  its  consequences,  as  it  affected  the 
public  morals  and  the  public  sentiment,  was  one  of  the  most 
important  that  had  come  before  a  jury  of  the  county  of  Essex. 

"  That  the  principal  facts  upon  which  it  was  grounded,  and 
which  had  been  detailed  by  the  witnesses,  might  be  comprised  in- 
a  few  words. 

"  The  defendant's  note  of  hand  for  $2,000  or  upwards,  dated 
in  New  York  and  payable  in  New  York  money,  had  come  into 
the  hands  of  the  plaintiff  by  endorsement,  and  had  been  placed 
in  one  of  the  banks  there  for  collection.  The  defendant  not 
only  suffered  it  to  lie  over  and  be  protested,  but  actually  refused 
to  pay  it.  The  plaintiff  then  ordered  a  suit  at  law,  but  before 
the  suit  was  brought  he  wrote  to  his  attorney,  countermanding 
his  orders,  and  transferred  the  note  to  a  third  person,  to  whom 

*856 


2  SOUTH.]  APPENDIX.  1009 

Gibbons  v.  Ogden. 

the  defendant  then  paid  the  money  and  took  up  the  paper ;  the 
countermand  did  not  reach  the  attorney  in  time,  so  that  process 
actually  issued  and  was  served  upon  the  defendant  when  he 
had  the  paper  in  his  pocket.  When  the  mistake  was  discovered 
by  the  plaintiff  he  immediately  wrote  a  note  of  apology  to  the 
defendant,  stating  the  facts,  and  offering  to  pay  the  costs  and 
expenses ;  but  the  defendant,  notwithstanding,  making  this  tin- 
pretext  for  his  wrath,  wrote  a  note  and  sent  it  to  the  plaintiff', 
which  note  the  jury  had  before  them,  and  which,  according  to 
the  understanding  of  the  court,  was  a  challenge  to  fight  a  duel. 
The  plaintiff,  seeing  from  whom  it  came,  refused  to  receive  the 
note,  and,  thereupon,  the  defendant,  as  is  probably  the  custom 
a- it  It  those  men  of  honor,  with  the  threats  in  his  mouth  which 
had  been  detailed  by  the  witnesses,  posted  him  on  his  own  door, 
in  the  *presence  of  his  family,  as  a  rascal  and  a  coward ;  and 
that,  for  this  cause,  the  action  was  brought. 

"  That,  in  form,  it  was  an  action  of  trespass,  but,  in  substance, 
an  action  to  recover  damages  for  profaning  the  sanctity  of  his 
domicil,  insulting  the  feelings  of  his  family,  and  impeaching  his 
own  conduct  as  a  citizen,  and  his  dignity  as  a  man.  This  is  a 
legitimate  object ;  it  is  founded  in  the  principles  of  our  nature, 
in  the  principles  of  our  law,  and  in  the  principles  of  common 
sense. 

"  That  it  was  true  that  in  order  to  maintain  this  action,  the 
plaintiff  must  prove  a  trespass  in  the  strict  technical  sense  of  that 
word,  and  much  pains  had  been  taken,  both  in  the  examination 
of  the  witnesses  and  in  the  argument  at  the  bar  to  show  that  the 
freehold  on  which  the  defendant  had  entered,  and  the  door  upon 
which  he  had  posted  the  testimonials  of  his  personal  prowess, 
though  admitted  to  be  the  freehold  and  property  of  the  plaintiff, 
yet  was  not  in  his  actual  possession,  but,  by  a  tenancy  at  will,  at 
least,  in  the  possession  of  another. 

"  The  import  of  the  testimony  upon  this  subject,  of  which  the 
jury  are  the  sole  judges,  seemed  to  be  this,  that  the  dwelling- 
house  of  the  plaintiff  consisted  of  a  principal  mansion  and  t\v<> 
wings,  and  stood  at  a  distance  from  the  street,  with  a  court-yard 
inclosed  before  the  door;  that  the  west  wing  had  two  rooms 
*857  64 


1010  APPENDIX.  [5  LAW 

Gibbons  v.  Ogden. 

below  and  two  rooms  above,  with  a  passage  between  them  and 
the  principal  dwelling-house ;  that  the  front  room  of  this  wing 
below  had  been,  for  many  years,  used  as  the  plaintiff's  public 
office,  the  back  room  as  his  private  office,  and  the  upper  rooms 
as  bed-rooms  for  his  family ;  that  though  he  had,  in  some  measure, 
retired  from  the  practice  of  the  law,  yet  still  the  front  room  was 
the  depository  of  his  library  and  his  papers,  and  the  place  in 
which  he  transacted  all  his  common  business,  and  the  back  room 
his  private  cabinet  only ;  that,  in  the  front  room,  the  fire,  the 
candles,  the  furniture,  the  stationery,  pens,  ink  and  paper  were 
all  kept  up  and  maintained  at  his  expense,  though,  at  the  same 
time,  he  had  given  to  his  son-in-law,  Mr.  Barber  (who  is  now 
set  up  as  the  tenant),  the  liberty  of  transacting  his  business  there, 
not  only  as  an  attorney,  but  also  as  clerk  of  the  borough  of 
Elizabeth,  and  as  the  incumbent  of  sundry  other  small  offices  ; 
and  the  fair  deduction  from  this  testimony,  if  fully  accredited  by 
the  jury,  was  that  the  plaintiff  himself,  and  not  his  son-in-law, 
was  in  the  actual  possession  of  this  wing,  and  of  every  part  of 
it ;  but  even  *if  it  had  been  proved  that  this  front  room  had  been 
actually  leased  to  Mr.  Barber,  and  that  he  had  the  exclusive 
possession  of  it,  yet  still  the  passage  between  that  and  the 
principal  dwelling  not  having  been  leased  with  it,  and,  being  a 
common  passage  for  the  plaintiff  and  all  his  family,  the  passage 
to  the  cabinet,  to  the  garden,  to  the  bed-rooms  above,  and  for 
the  common  services  of  the  house ;  the  possession  of  this  passage, 
upon  legal  principles,  must  be  considered  as  remaining  in  the 
lessor,  the  lessee  having  the  right  of  ingress  and  egress  only ;  but 
that  recourse  must  not  be  had  to  this  principle,  for  it  was  very 
clear,  from  the  testimony,  that  no  such  lease  existed. 

"That  some,  had  imagined,  and  perhaps  the  defendant  might 
have  imagined  that  he  might,  with  his  horse-whip  in  his  hand, 
and  with  threatenings  of  the  most  degrading  nature  in  his  mouth, 
enter  upon  the  dwelling  of  a  free  citizen,  in  his  absence,  display 
his  vaunted  courage  in  the  presence  of  defenceless  females,  out- 
rage all  the  delicacy  and  timidity  of  their  nature,  and  then  turn 
round  and  say  Ha !  ha !  Where  is  your  injury,  and  where  is 
your  redress  ?  But  this  is  not  our  law ;  ours  is  a  law  founded 

*858 


2  SOUTH.]  APPENDIX.  1011 

Gibbons  r.  Ogden. 


on  human  nature ;  it  regards  the  condition  of  man  as  he  is ;  it 
considers  the  end  of  all  his  anxieties  and  labors  and  toil ;  it 
•considers  what  are  the  treasures  nearest  to  his  heart,  what  the 
object  of  his  tenderest  affection ;  it  considers  the  sacredness  of 
the  conjugal  connection,  the  obligation  of  the  parental  relation, 
and  justly  estimates  them  all;  it  makes  his  dwelling-house  a 
•castle  for  their  protection,  which  an  enemy  shall  not  enter ;  a 
temple  for  their  secret  devotions,  which  a  stranger  shall  not 
profane. 

"  That  it  was  obvious  that  in  those  cases  damages  were  not  fixed 
and  certain,  but  discretionary  only,  not  to  be  calculated  by  the 
actual  loss  of  money  or  of  injury  to  the  freehold,  but  by  the  in- 
juries done  to  rights  still  more  dear  to  every  honorable  man  than 
all  his  worldly  wealth  besides.  In  estimating  these  damages, 
therefore,  they  had  a  right  to  consider  not  only  such  actual  injury 
to  the  freehold,  which,  perhaps,  might  not  amount  to  a  single 
dollar,  but,  also,  to  give  a  reasonable  compensation  for  the  viola- 
tion of  his  rights  as  a  man,  as  the  father  of  a  family,  as  a  fellow- 
citizen  possessing  all  the  high  and  honorable  feelings  and  all  the 
sacred  obligations,  both  civil  and  domestic,  which  they  themselves 
possessed  and  felt. 

"  They  might  go  further  ;  they  might  give  exemplary  damages 
— *damages  which  would  deter  others  from  becoming  the  judges 
of  their  own  imaginary  wrongs  and  from  attempting  to  take 
vengeance  at  short-hand,  as  the  defendant  was  alleged  to  have 
done. 

"  Nay,  they  might  go  still  further ;  they  might  give  damages 
not  only  for  satisfaction,  and  by  way  of  example,  but,  also,  as  a 
direct  punishment  upon  the  defendant  for  this  outrageous  act ; 
they  might  give  damages  so  heavy  as  to  break  down  his  turbu- 
lent spirit,  to  restrain  his  impetuous  passions,  to  extort  from  his 
fears  what  coukl  be  expected  neither  from  his  favor  nor  his 
justice. 

"  That,  whether  they  should  make  one  or  the  other  of  these 
principles  the  basis  of  their  calculation,  or  whether  they  should 
blend  them  altogether,  was  a  matter  which  must  be  submitted 
•wholly  to  their  own  discretion,  and  that  it  was  accordingly  sub- 

*859 


1012  APPENDIX.  [5  LAW- 

Gibbons  v.  Ogden. 

mitted  with  the  greatest  confidence  in  the  soundness  of  their  heads- 
and  the  integrity  of  their  hearts. 

"  That,  upon  whatever  principle  they  might  go,  it  was  a  matter 
clearly  settled  that  they  could  not  find  beyond  the  sum  laid  in 
the  declaration,  which  was  $5,000,  and  it  was  hoped  it  would  not 
be  necessary  to  say  they  might  find  less. 

"  To  this  charge  of  the  court  a  bill  of  exceptions  was  prayed 
by  the  counsel  for  the  defendant,  and  it  was  allowed,  and  is  here 
sealed  accordingly." 

Many  errors  were  assigned  in  the  court  of  appeals,  the  princi- 
pal of  which  were — 1.  That  the  declaration  complained  not  only 
of  the  trespass  which  was  set  forth,  but,  also,  that  the  defendant 
posted  up  a  wicked,  malicious  and  insulting  hand-bill ;  whereas,, 
the  nature  of  the  hand-bill  could  not  be  tried  in  this  action  ;  and 
that  he  joined  in  one  action  different  causes  of  action  which 
could  not  be  joined.  2.  That  the  chief-justice  overruled  compe- 
tent evidence  to  prove  that  the  venire  and  transcript  were  not 
signed  nor  sealed  by  the  clerk  of  the  supreme  court.  3.  That 
the  cause  was  tried,  although  it  appeared  that  the  transcript  was 
not  signed  and  sealed  by  the  clerk,  but  by  the  attorney  of  plain- 
tiff. 4.  Because  the  chief-justice  permitted  the  hand-bill  to  be 
read  in  evidence,  the  same  not  being  sufficiently  proved  nor 
necessary  to  support  the  issue.  5.  The  chief-justice  refused  to- 
nonsuit  the  plaintiff,  although  it  was  not  proved  that  the  defend- 
ant had  committed  any  such  trespass  as  the  plaintiff  had  com- 
plained of  against  him,  nor  was  the  plaintiff  in  the  sole  and 
exclusive  possession  of  that  part  of  the  premises  on  which  the 
trespass,  if  *any,  was  committed.  6.  The  plaintiff  was  per- 
mitted to  prove  the  quo  animo  and  malicious  intent  with  which 
the  defendant  entered  the  premises  and  put  up  the  hand-bill,  and 
particularly  the  testimony  of  Ephraim  Clark,  which  was  not 
admissible,  because  the  declaration  did  not  set  forth  the  quo 
animo,  and  malicious  intent ;  nor  was  the  action  commenced  nor 
prosecuted  for  any  injury  committed  or  threatened  to  the  person 
of  the  plaintiff;  nor  was  the  threatening  to  whip  the  plaintiff 
alleged  by  way  of  aggravation  of  the  trespass.  7.  The  chief- 
justice  charged  contrary  to  law.  Several  errors  to  particular 

*860 


2  SOUTH.]  APPENDIX.  1013 

Gibbons  r.  Ogden. 

parts  of  the  charge  were  also  assigned.  And,  also,  that  the  verdict 
was  given  for  the  plaintiff;  whereas,  by  law,  in  case  the  said 
evidence  objected  to  had  been  rejected,  as  it  ought  to  have  been, 
or  the  chief-justice  had  not  charged  contrary  to  law,  the  verdict 
upon  the  issue  should  have  been  for  the  defendant,  or  less  dam- 
ages should  have  been  given. 

The  cause  was  argued  at  May  term,  1820,  by  Halsey  and 
Vanarsdale,  for  the  plaintiff  in  error,  and  by  the  Attorney- Gen- 
eral and  R.  Stockton,  for  the  defendant. 

The  governor  informed  the  court  that  he  had  been  attorney 
and  counsel  in  the  cause  for  one  of  the  parties  in  the  court  be- 
low, and  therefore  declined  voting  as  to  the  affirming  or  revers- 
ing the  judgment  of  the  supreme  court.  Mr.  Baxter,  from 
Gloucester,  requested  to  be  excused  from  voting,  as  he  had  heard 
only  part  of  the  arguments  of  the  counsel  concerned  for  the 
parties,  and  was  accordingly  excused. 

The  judgment  was  reversed,  thirteen  members  being  present. 
Six  voted  for  reversal,  Jive  for  affirmance  and  two  did  not  vote. 
Upon  this  state  of  facts  being  known,  the  counsel  of  the  defend- 
ant in  error  insisted  that  all  the  members  of  the  court,  especially 
the  governor,  were  bound  to  express  an  opinion,  and  that  no 
judgment  could  be  given,  as  the  six  who  voted  for  reversal  were 
not  a  majority  of  the  members  present.  But  the  court  directed 
judgment  of  reversal  to  be  entered,  and  made  the  following 
entry  on  their  minutes :  "  It  is  adjudged  by  this  court  that  a 
majority  of  members  present,  and  voting,  is  sufficient  to  a  de- 
cision of  affirmance  or  reversal  where  one  or  more  members  have 
been  excused,  provided  a  constitutional  quorum  attend  and 
vote,  (a)  Ayes — Haring,  Condit,  Dunn,  Crane,  Thompson, 
•Stevenson,  Upson,  V.  P.  Seeley.  Nays — Frelinghuysen,  X< -\\  - 
bold,  *  Baxter,  Swain."  No  opinion  expressing  the  reasons  for 
the  judgment  was  given. 

The  defendant  in  error  subsequently  moved  that  the  record  be 
remitted  to  the  supreme  court,  with  direction  that  a  venire  de 
novo  issue  and  a  new  trial  be  had.  It  was  objected  for  the 

(o)   Wood  v.  Fithinn,  4  Zab.  8SS ;  Clapp  v.  Ely,  S  Dutch,  Bit. 

*861 


1014  APPENDIX.  [5  LAW 

Stansbury  v.  Squier. 

plaintiff  that  if  the  judgment  had  been  reversed  for  defect  in  the- 
declaration  or  nature  of  the  action,  no  venire  de  novo  ought  to  be 
awarded ;  that  it  was  only  proper  where  the  cause  of  reversal 
was  found  in  the  trial  itself.  It  is  understood  that  the  venire  d& 
novo  was  unanimously  ordered. 


STANSBURY  v.  SQUIER,  sheriff  of  Essex,  (a) 
LAWRENCE  v.  SAME. 
•    MARSH  v.  SAME. 

In  these  cases  judgments  of  amercement  against  N.  Squier,. 
sheriff  of  Essex,  were  rendered  in  the  supreme  court  at  February 
term,  1819.  See  ante  433.  Writs  of  error  were  sued  out.  The- 
return  of  these  writs  brought  up  only  the  record  of  the  judg- 
ments ;  but  the  state  of  facts  which  had  been  agreed  on  by  the- 
parties,  and  upon  which  the  supreme  court  founded  their  judg- 
ment, not  being  a  part  of  the  record,  could  not  properly  be  re- 
turned with  the  writ.  The  court  of  appeals  was  therefore 
moved  that  a  writ  issue  to  the  clerk  to  bring  it  up.  Scudder 
objected,  but  after  argument  the  following  rule  was  ordered :. 
"  Diminution  in  the  record  in  this  cause  being  alleged  by  Joseph 
C.  Hornblower,  attorney  for  the  plaintiff  in  error  in  this  cause, 
in  that  the  justices  of  the  supreme  court  have  not  sent  and  certi- 
fied to  this  court  the  state  of  the  case  or  facts  in  this  cause  agreed 
upon  between  the  parties  and  affiled  in  the  clerk's  office  of  the 
said  supreme  court,  upon  which  the  judgment  in  this  cause  was 
rendered  below  :  It  is  ordered  that  the  return  of  the  said  record 

(a)  A  judgment  of  amercement  can  be  reviewed  on  writ  of  error,  Evans  v^ 
Adams,  3  Or.  373;  Eamen  v.  Stiles,  2  Vr.  490 ;  Kemble  v.  Harris,  7  Vr.  526, 
Contra,  Kline  v.  Pemberton,  2  Hal.  438;  Wright  v.  Green,  6  Hal.  SS4;  see 
Allen  v.  Tyler,  S  Vr.  499;  Den,  Rutherford  v.  Fen,  1  Zab.  700;  Phillips  v. 
Phillips,  S  Hal.  122. 


2  SOUTH.]  APPENDIX.  1015 


Arnold  >•  Den. 


be  amended  and  perfected  in  all  things,  and  that  in  order  thereto 
a  certiorari  do  issue  to  Zachariah  Rossell,  Esq.,  clerk  of  the  su- 
preme court,  to  obtain  a  full  and  complete  removal  before  this 
court  of  the  said  state  of  the  case  and  of  the  proceedings  in  the 
said  supreme  court  in  this  cause."  (a) 

*Upon  the  argument,  one  of  the  questions  raised  by  the  coun- 
sel of  Stansbury  was,  whether  this  judgment,  being  a  judgment 
of  amercement,  could  be  reviewed  upon  a  writ  of  error. 

The  cause  was  argued  by  Attorney- General  and  R.  Stockton, 
for  plaintiff  in  error,  and  Scudder,  for  defendant. 

At  November  term,  1819,  the  court  of  appeals,  "  having  seen 
and  examined  the  record  and  proceedings  and  judgment  of  the 
said  supreme  court  &c.,  did  order  and  adjudge  that  the  said 
judgment  be  set  aside  and  reversed." 


THE  STATE  v.  POTTS  and  others. 

In  this  case,  for  which  see  ante  347,  there  was  a  writ  of  error 
brought,  and  at  May  term,  1818,  the  judgment  was  affirmed  and 
the  proceedings  removed  by  the  said  writ  of  error  remitted  into 
the  supreme  court. 


CHARLES  ARNOLD  v.  JOHN  DEN,  ex  dem.  DANIEL  PHCENIX 
and  ANNA  L.,  his  wife. 

A  died  seized  of  land  acquired  by  deed  of  gift  from  her  father.  Her 
brothers  and  sisters  of  the  half-blood  by  her  mother's  side  are  entitled  to  in- 
herit together  with  her  half-sister  on  her  father's  side.  (6) 

(a)  Coze  v.  Field,  1  Or.  816;  Alien  v.  Craig,  X  Or.  lit;  GUliland  v.  Rap- 
pleyea,  S  Or.  1S8 ;  Apgar  T.  Htler,  4  Zab.  808. 

(b)  See  Den,  Stretch  v.  Stretch,  1  South.  182  (a) ;  Pennington  v.  Ogden,  COM 
192;  Den,  Pierton  v.  De  Hart,  Perm,  *481 ;  see  SehencJc  v.  Fad,  9  C.  E.  Gr. 
5S8;  Den,  Rake  v.  Lawhee,  4  Zab.  6 IS. 

*862 


1016  APPENDIX.  [5  LAW 


Arnold  v.  Den. 


In  error. 

On  the  25th  day  of  September,  1817,  this  cause  came  on  to  be 
tried  before  the  circuit  court,  holden  by  Justice  Rossell,  at  Mor- 
ristown,  in  and  for  the  county  of  Morris.  The  plaintiff  proved 
that  Jonas  Phillips  took  possession  of  the  premises  in  the  year 
1779,  and  held  possession,  peaceably  and  uninterruptedly,  by  his 
tenants  and  himself,  until  about  the  27th  day  of  December, 
1813,  when  he  died,  in  possession ;  that  for  three  or  four  years 
next  before  the  death  of  Jonas  Phillips  the  defendant,  Charles 
Arnold,  was  in  possession  of  part  of  the  house,  barn  and  garden, 
and  was  in  possession  of  part  of  the  premises  with  the  said  Jonas 
Phillips  as  his  tenant,  and  paid  him  rent  by  rendering  to  him  a 
share  of  the  crops  during  the  said  three  or  four  years  until  the 
death  of  the  said  Jonas  Phillips ;  that  after  the  death  of  Jonas 
Phillips  the  defendant  continued  in  possession  and  paid  rent  to 
the  widow  of  Jonas  Phillips. 

*The  plaintiff  also  gave  in  evidence  a  deed  of  conveyance  from 
Jonas  Phillips  to  Mary  Phillips,  his  daughter,  in  fee,  for  the 
premises  in  question,  dated  the  9th  day  of  May,  1809;  also, 
that  Jonas  Phillips  had  one  child,  Anna  L.  Phillips,  the  wife  of 
Daniel  Phoenix,  which  said  Daniel  Phosnix  and  Anna  L.  are  the 
lessors  of  the  plaintiff. 

That  after  the  death  of  Jonas  Phillips's  first  wife,  he  inter- 
married with  Phebe  Arnold,  who  was  the  widow  of  Samuel 
Arnold,  deceased,  by  whom  she  had  three  children,  now  living, 
namely,  Jacob  Arnold,  Phebe  Arnold  and  Nancy  Arnold ;  that 
Jonas  Phillips,  by  his  said  second  wife,  had  two  children,  namely, 
George,  who  died  at  the  age  of  seventeen,  unmarried  and  with- 
out issue,  in  the  lifetime  of  his  father,  and  a  daughter  named 
Mary,  who  died  seized  of  the  premises  in  question,  without  issue, 
about  the  3d  day  of  July,  1811.  And  the  plaintiff  rested  his 
evidence,  whereupon  the  defendant  moved  to  nonsuit  the  plain- 
tiff for  not  having  given  notice  to  the  defendant  to  quit  the 
premises  in  question.  The  court  refused  the  motion  and  the  de- 
fendant excepted  and  prayed  his  bill  of  exceptions  to  the  said 
opinion  of  the  court. 

*863 


2  SOUTH.]  APPENDIX.  1017 

Arnold  r.  Den. 

The  plaintiff  then  offered  in  evidence  the  last  will  and  testa- 
ment of  Jonas  Phillips,  deceased,  duly  executed,  bearing  date 
the  5th  day  of  April,  1809.  The  defendant  then  offered  to 
prove  that  the  premises  in  question  were  once  owned  by  one 
William  Demayne,  who  mortgaged  them  to  Colonel  Jacob  Ford, 
the  father  of  Jonas  Phillips's  second  wife,  formerly  Mrs.  Arnold, 
to  secure  the  payment  of  £439  8*.  6d. ;  that  Colonel  Ford  died 
leaving  this  bond  and  mortgage  unsatisfied,  and  it  came  into  the 
hands  of  his  executors — before  which  William  Demayne  had 
absconded  and  left  the  country ;  that  the  executors  of  Colonel 
Ford  gave  to  Mrs.  Phillips,  formerly  the  said  Mrs.  Arnold,  the 
said  bond  and  mortgage ;  and  that  Jonas  Phillips  went  into  pos- 
session of  the  premises  expressly  under  and  by  virtue  of  the 
said  mortgage ;  that  the  said  mortgage  was  in  existence,  in  the 
possession  of  the  said  Jonas  Phillips,  after  he  took  possession 
of  the  said  mortgaged  premises ;  that  the  same  has  been  lost  or 
destroyed  by  time  or  accident,  and  cannot  now  be  found  so  as  to 
be  read  in  evidence.  To  which  evidence  the  plaintiff  objected, 
and  the  court  overruled  the  evidence.  To  which  opinion  the 
defendant  prayed  this  his  bill  of  exceptions.  The  court  charged 
the  *jury,  "That  by  an  act  of  our  legislature,  lands  in  Xt  \v 
Jersey  are  almost  universally  held  by  the  same  tenure  (common 
soocage)  as  the  lands  of  that  country  from  which  we  originally 
descended ;  and  claims  set  up  to  lands  in  this  state  must  be  regu- 
lated by  the  canons  of  descent  that  have  been  established  for 
ages  in  England,  and  have  been  adopted  in  this  country  in  con- 
formity with  that  tenure,  unless  altered  by  some  act  of  the  legis- 
lature. It  had  been  a  long-established  rule  of  the  common  law 
that  no  brothers  or  sisters  of  the  half-blood  could  possibly  in- 
herit an  estate  descending  from  a  person  dying  without  children  ; 
whereby  the  estate  of  an  ancestor  sometimes  went  out  of  the 
family  of  such  ancestor.  To  remedy  this  hardship  our  legisla- 
*ure  passed  the  law.  Pat.  44>  Some  time  after  the  passing  of 
that  law  a  question  of  half-blood  claiming^  under  it,  came  up 
before  the  supreme  court,  who,  on  advisement,  restrained  the 
generality  of  the  words  of  the  act  to  mean  only  the  brothers  ;m<l 
sisters  of  the  half-blood  on  the  father's  side,  if  the  estate  came 

.    *864 


1018  APPENDIX.  [5  LAW 


Arnold  v.  Den. 


through  him,  or  brothers  and  sisters  of  the  mother's  side,  if  the 
estate  notoriously  descended  from  her,  in  conformity  to  the  long- 
established  rules  regulating  the  descent  of  real  estate  before 
mentioned.  The  opinion  of  the  court  on  this  subject  was  fully 
given  and  has  been  read  to  you  from  Pennington's  reports  (see 
Den  v.  Urison,  Penn.  #7#),  and  has  settled  the  question  in  this 
state  until  it  shall  be  otherwise  decided  by  a  superior  tribunal. J> 
To  which  charge  of  the  court  the  defendant  prayed  his  bill,  and 
it  was  sealed  accordingly. 

The  cause  was  argued  and  decided  at  May  term,  1819.  At- 
torney-General and  Ewing  were  of  counsel  with  the  plaintiffs  iu 
error;  Chetwood  and  R.  Stockton  with  the  defendant.  The  fol- 
lowing entry  was  made  on  the  record. 

"  This  court  having  examined  the  record  and  proceedings  had 
in  this  cause  in  the  court  below,  and  heard  the  arguments  of 
counsel  thereon,  and  it  appearing  to  the  court  that  Mary  Phil- 
lips, in  the  bill  of  exceptions  mentioned,  died  possessed  of  and 
entitled  to  the  premises  in  question,  and  that  the  said  premises 
did  not  descend  to  her  from  her  said  father,  Jonas  Phillips,  but 
that  the  same  were  conveyed  to  her  by  deed  of  gift  from  her 
said  father,  this  court  is  of  opinion  that  by  the  fair  construction 
of  the  third  section  of  the  act  of  the  legislature  of  the  24th  of 
March,  1780,  entitled  'An  act  to  alter  the  law  directing  the 
de*scent  of  ^eal  estates,'  her  brothers  and  sisters  of  the  half- 
blood  on  her  mother's  side,  mentioned  in  the  said  bill  of  excep- 
tions, are  entitled  to  inherit  the  said  premises,  together  with  the 
said  Anna  L.  Phoanix,  the  half-sister  of  the  said  Mary  Phillips, 
on  the  father's  side,  in  the  manner  and  proportions  between  male 
and  female,  directed  by  the  first  section  of  the  said  act ;  and  that 
the  judge,  at  the  trial  of  the  cause,  misdirected  the  jury  in  that 
particular.  This  court  doth  order,  adjudge  and  determine  that 
the  judgment  of  the  supreme  court  be  reversed  "  &c. 

*865 


2  SOUTH.]  APPENDIX.  1019 

Montgomery  v.  Bruere. 

MARY  MONTGOMERY  t>.  PRICE  BRUERE.  (a) 
In  error.     In  dower. 

For  the  decision  of  the  supreme  court  in  this  cause,  see  ante 
260. 

Jin  the  court  of  appeals  Wall  was  attorney,  and  Ewing  of 
counsel  with  the  plaintiff  in  error.  R.  Stockton,  attorney,  and 
L.  H.  Stockton  of  counsel  with  the  defendant  in  error. 

The  following  entry  was  made  on  the  minutes  of  the  court  of 
appeals : 

"And  now,  at  this  day,  to  wit,  the  1st  day  of  March,  1820, 
come  here,  as  well  the  said  Mary  Montgomery,  as  the  said  Price 
Bruere,  by  their  attorneys  aforesaid,  whereupon,  the  premises 
being  considered,  and  as  well  the  record  and  proceedings  afore- 
said, and  the  judgment  aforesaid  thereon  given,  as  also  the  cause 
by  the  said  Mary  Montgomery  above  for  error  assigned,  being, 
by  the  said  court  of  errors  and  appeals  in  the  last  resort  in  all 
causes  of  law,  here  diligently  examined  and  fully  understood, 
and  mature  deliberation  thereupon  being  had,  it  appears  to  the 
said  court,  before  the  governor  and  council,  now  here,  that  in  the 
record  and  proceedings  aforesaid,  and  also  in  the  giving  the 
judgment  aforesaid,  there  is  manifest  error  : 

"  Therefore,  it  is  considered  that  the  judgment  aforesaid,  for  the 
error  aforesaid,  and  other  errors  in  the  record  and  proceedings 
aforesaid,  be  reversed,  annulled  and  altogether  held  for  nothing ; 

(a)  A  widow  is  entitled  to  dower  in  an  equity  of  redemption,  Harrison  v. 
Eldridge,  2  Hal.  S92  ;  Woodhull  v.  Reid,  1  Harr.  1X8;  Yeo  v.  Mtrcarcau,  S 
Hear.  S87 ;  Thompson  v.  Boyd,  1  Zab.  58,  2  Zab.  54S  ;  Wade  v.  Miller,  S  Vr. 
896;  Hartshorne-v.  Harbhorne,  1  Or.  Ch.  349;  Hinehman  v.  Stiles,  1  Stock. 
S61,  454;  Opdyke  v.  Bartles,  S  Stock.  1SS ;  Brovm  v.  Richards,  2  C.  E.  Or.  82; 
Vreeland  v.  Jacobus,  4  C.  E.  Or.  Ml,  cited  in  Den  v.  Stockton,  7  Hal.  828  ; 
where  the  mortgagee  afterwards  purchases  the  equity  of  redemption,  Harts- 
home  v.  Hartshornc,  1  Or.  Ch.  S49 ;  Chisuxll  v.  Morris,  1  McOurL  101;  Eld- 
ridge  v.  Eldridge,  1  McCari.  195  ;  Thompson  v.  Boyd,  2  Zab.  54S ;  see  MvJford 
v.  Peterson,  6  Vr.  If7. 


1020  APPENDIX.  [5  LAW 

Montgomery  v.  Bruere. 

and  that  the  said  Mary  Montgomery  be  restored  to  all  things 
which  she  hath  lost  by  occasion  of  the  said  judgment;  and  it  is 
further  considered  that  the  said  Mary  Montgomery  do  *recover 
against  the  said  Price  Bruere,  as  well  her  seizin  of  the  third  part, 
above  demanded,  with  the  appurtenances,  to  be  held  by  her,  in 
severalty,  by  metes  and  bounds,  as  the  value  of  the  third  part 
of  the  tenements  aforesaid,  with  the  appurtenances,  from  the 
said  1st  of  October,  1815,  to  the  time  of  the  rendition  of  judg- 
ment, which  said  value,  from  the  said  1st  day  of  October  lust 
aforesaid,  amounts  to  $453.64,  as  also  $83.48,  by  the  court  here 
adjudged  to  the  said  Mary  Montgomery,  at  her  request,  for  her 
costs  and  charges  by  her  about  her  suit  in  that  behalf  expended, 
which  said  value  and  costs  and  charges,  in  the  whole,  amount  to 
$537.12,  and  that  she  have  execution  thereof;  and  the  said  Price 
Bruere,  in  mercy  &c. 

"  And  thereupon,  as  well  the  record  aforesaid  as  the  proceedings 
of  the  governor  and  council  in  the  court  of  errors  and  appeals  in 
the  last  resort  in  all  causes  of  law,  before  them  had  in  the 
premises,  were,  by  the  said  governor  and  council,  remitted  into 
the  supreme  court  of  judicature  of  the  state  of  New  Jersey,  be- 
fore the  justices  thereof." 

*866 


INDEX. 

A. 


Account. 

See  PLEADING,  1 ;  AUDITORS,  1 ;  RECORD,  2 ;  STYLE  OF  ACTION,  2. 

Action. 

1.  For  breach  of  contract  in  not  giving  up  a  judgment,  the  action 

must  be  case,  not  debt     Vanhorn  v.  Hamilton,  477 

2.  On  writing  not  assignable,  must  be  in  the  name  of  the  original 

creditor  to  whom  it  was  given.     Lacey  and  Earle  v.  Collins,  489 

3.  If  A  sell  and  deliver  oats  to  B  for  an  unsatisfied  execution  in 

constable's  hand,  and  B  refuse  to  let  A  control  the  execution,  or 
receive  the  money  upon  it,  A  may  maintain  action  for  breach  of 
the  contract.  Ayers  and  Thompson  v.  Swayze,  812 

Joint,  tee  CONSTABLE,  1,  2;  STYLE  OP  ACTION. 

Adjournment. 

Though  justice  adjourns  beyond  fifteen  days,  yet  if  parties  appear  and 

try  the  cause  the  error  is  cured.     Hillman  v.  Hayden,  575 

Administrator. 

1.  Not  bound  to  give  bail  on  removing  cause  from  pleas  into  supreme 

court  by  habeas*  corpus.    Sneed  v.  Wullen,  682 

2.  General  judgment  against  administrator,  not  good.     Montfort  v. 

Vanarsdalen,  686 

3.  Where  agreement  is  to  refer  all  matters  in  difference  between 

the  parties,  the  report  and  judgment  must  be  against  defendant  as 
administrator.  Id.,  686 

Sec  JUROR,  1. 

Advertising. 

See  ATTACHMENT,  1. 

Affidavit. 

See  VERDICT,  4;  RULE;  CONFESSION  OF  JUDGMENT. 

Agent. 

Who  signs,  as  agent,  a  note  which  purports  to  be  for  principal,  not 

answerable  in  his  individual  capacity.     Shotvdl  v.  M'Kotn,          828 
See  WITNESS,  5. 

1021 


1022  INDEX.  [5  LAW 


Amendment. 

1.  Declaration  may  be  amended  after  plea  and  demurrer.    Lanning  v. 

Shute,  778 

2.  In  ejectment  the  time  of  the  demise  may  be  amended,  after  trial 

and  nonsuit,  on  the  ground  that  lessor  was /erne  covert  at  the  time 

of  the  demise.     Den  v.  Franklin  and  Sharp,  851 

Amercement. 
See  STATUTE,  1. 

Animals. 

See  TRESPASS,  2. 

Appeal. 

Form  of  entering  judgment  on  appeal.    Hendricks  v.  Oraig,  567 

Appeals,  Court  of. 

If  any  judges  decline  voting,  and  are  excused,  a  majority  of  those 
voting,  though  not  a  majority  of  those  present,  determine  the 
judgment.  Gibbons  v.  Ogden,  853 

Appeal-Bond. 

1.  Must  be  legally  executed  before  the  justice  can  grant,  or  pleas 

receive  the  appeal.    Stevens  v.  Scvdder,  503 

2.  Must  be  perfected  and  filed  at  the  first  term  after  judgment;  and 

if  pleas  grant  further  time  for  that  purpose,  it  is  error.     Id.,          503 

Appearance. 

When  defendant  acknowledges  the  service  of  writ  by  writing  on  its 
back,  and  requests  appearance  to  be  entered  for  him,  it  is 
authority  for  plaintiff  to  file  common  bail.  Corse  v.  Colfax,  584 

See  VENIRE,  1 ;  BAIL-BOND,  2 ;  SUMMONS,  1 ;  TRANSCRIPT,  3. 

Apprentice. 

See  SOLDIER,  1  j  GUARDIAN,  1. 

Arbitrators. 
See  AWARD. 

Arrest. 

See  ATTORNEY,  1. 

Assessment. 

Ought  to  be  made  by  jury,  on  scire  facias,  to  take  out  execution  where 

previous  execution  had  been  levied.    Buchannan  v.  Rowland,        721 


2  SOUTH.]  INDEX.  1023 


Assignment. 

1.  A  writing,  acknowledging  a  settlement  and  balance  due,  not  assign- 

able so  that  action  may  be  in  name  of  assignee.    Lacey  and  EarU 
v.  Collins,  489 

2.  Endorsement  of  name  on  such  paper  no  authority  to  holder  to 

write  assignment  over  the  name.     Id.,  489 

See  BOND  FOB  PRISON  LIMITS,  1,  3 ;  SEALED  BILL,  1 ;  PROMIS- 
SORY NOTE;  STYLE  OF  ACTION,  2. 

Assignee. 

See  BOND  FOB  PRISON  LIMITS,  1,  3. 

Assumpsit. 

See  CONTBACT,  2. 

Attachment. 

1.  If  clerk  neglect  to  advertise  until  second  term,  and  the  other  pro- 

ceedings are  regular,  writ  will  not  be  quashed.     Cory  v.  Lewis,      846 

2.  When  removed  by  certiorari  into  supreme  court,  and  judgment  of 

pleas  reversed,  the  .action  is  continued,  and  subsequent  proceed- 
ings had  in  this  court.     Id.,  846 
See  COSTS,  1. 

Attorney. 

1.  Privileged   from   arrest,   unless   privilege   taken   away   by   rule; 

though  he  do  not  show  that  he  has  acted  as  attorney  in  a  year. 
Ogden  ads.  Hughe*,  718 

2.  Not  lawful  for  two  or  more  to  create  partnership,  and  prosecute 

and  defend  suits  in  the  name  of  the  firm.     Wilson  v.  Wilton,          791 

3.  Is  presumed  to  have  authority  to  bring  suit  in  the  manner  in  which 

he  prosecutes  ;  his  want  of  authority  must  be  shown.     Sorrit  v. 
Douglass,  817 

See  SUMMONS,  1. 

Auditors. 

In  action  of  account,  take  account  and  refer  objections  and  issues  to 
the  court ;  and  if  party  neglect  to  tender  issues,  in  fact  and  law, 
to  them,  he  cannot  afterwards  come  into  court  in  a  summary 
way  and  object  to  the  items.  Wilson  v.  Wilson,  791 

Award. 

Set  aside,  if  arbitrators  reject  competent  evidence.    Burroughs  v. 

Thome,  777 

See  DISCONTINUANCE. 


1024  INDEX.  [5  LAW 

B. 

Bastard. 

1.  Judgment  on  bond  to  indemnify  township  must  be  for  the  penalty, 

and  if  that  exceed  $100  justice  has  not  jurisdiction.    Boll  v. 
Weslfield,  493 

2.  The  state  of  demand  on  such  bond  must  set  out  how,  when,  and 

for  what  the  expenditures  were  made.     Id.,  493 

Bail. 

j$ee  PRISONER,  1 ;  ADMINISTRATORS,  1 ;  HABEAS  CORPUS,  5. 

Bail-Bond. 

1.  If  not  sealed  before  delivered  to  constable,  void,  and  defect  not 

cured  by  leave  to  constable  to  put  seals  to  it.    Smcdley  and  Cornell 
T.  Vanorden,  811 

2.  To  constable,  requires  defendant  to  appear  and  answer,  but  not  to 

wait  and  deliver  himself  to  constable  after  judgment  and  execu- 
tion.   Id.,  811 
See  WITNESS,  7. 

Bank  Bills. 

See  EVIDENCE,  7. 

Bill  of  Sale. 

1.  Whether  fraudulent,  is  question  for  jury.    Mount  and  Crane  v.  Hen- 

dricks,  738 

2.  If  fraudulent,  binding  between  parties,  void  as  to  creditors.    Id.,      738 

3.  Where  goods  are  deposited  with  A  for  safe  keeping,  and  he  knows 

the  nature  of  the  sale  when  holder  of  the  bill  sues  for  them,  A 
cannot  set  up  as  defence  that  the  sale  was  fraudulent.     Id.,  738 

4.  Not  fraudulent,  because  made  by  debtor  before  taking  benefit  of 

insolvent  laws,  and  with  a  view  to  prefer  one  creditor  to  others. 
Id.,  738 

See  WITNESS,  4. 

Bill  of  Exceptions. 

See  FORGERY,  1 ;  ERROR,  2. 

Bond. 

To  satisfy  person  injured  by  battery,  and  prevent  complaint  to  grand 

jury,  valid.  Price  v.  Summers,  578 

See  APPEAL-BOND,  1,  2 ;  CONSTABLE,  1,  2 ;  CONFESSION  OF  JUDG- 
MENT. 


2  SOUTH.]  INDEX.  1025 


Bond  for  Prison  Limits. 

1.  Must  not  be  assigned  before  breach.     2  an  won  v.  Cramer,  498 

2.  Is  broken  by  prisoner  being  two  miles  out,  though  he  return  before 

pursuit  or  action  brought.     Id.,  498 

3.  Assignee  can  only  recover  penalty,  though  less  than  debt  and 

interest.     Id.,  498 

Books. 

Not  sufficient  that  plaintiff's  books  had  been  proved  before  justice  on 

a  former  occasion.     Linnberyer  v.  Laluurette  and  Gartzman,  809 

Book  Debt. 

See  PLEADING,  1,  3. 

Breach. 

See  BOND  FOR  PRISON  LIMITS,  2;  COVENANT,  1. 

c. 

Capacity. 

See  TESTAMENTARY  CAPACITY,  1,  2. 

Cap.  Ad  Satisfaciendum. 

1.  Imprisonment  on  ca.  sa.  prima  facie  evidence  of  satisfaction  of  the 

judgment.     Mitter  v.  Miller,  508 

2.  Where  sheriff  has  received  two  writs  of  fi.  fa.  and  levies  on  and 

sells  the  goods  of  defendant  and  receives  the  money  and  pays  it 
on  the  lastyi./a.,  if  plaintiff  in  the  first  fi.fa.  then  take  defendant 
with  a  ca.  «z.  and  direct  him  to  be  discharged  before  he  is 
imprisoned,  he  releases  the  sheriff  from  liability  to  pay  the 
money  to  him.  The  ca.  sa.  is  a  satisfaction  of  the  debt  and  a 
discharge  of  the  sheriff.  Strong  and  Havens  v.  L\nn,  799 

See  CONSTABLE,  3. 

Case. 

See  ACTION,  1 ;  ERROR,  1 ;  EVIDENCE,  11. 

Oertiorari. 

1.  Is  a  superseded*  to  stay  proceedings.     Mairs  v.  Sparks,  513 

2.  To  remove,  judgment  in   forcible  entry  and  detainer,  may  be 

allowed  before  judgment.     Id.,  513 

3.  The  record  is  not  returned,  but  transcript  only.     Niehola  ads.  <Stote,  543 

4.  Form  of  return  from  oyer  and  terminer.    State  v.  Gustin,  746 

5.  To   bring  up   military  tax-warrant,  should  be  entitled  -Slate  v. 

Delinquents,  named  in  the  warrant,  and  be  directed  to  the  justice. 
State  v.  Kirby,  '-" '•* 

65 


1026  INDEX.  [5  LAW 


Gertiorari — Continued. 

6.  Such  certiorari  ought  to  be  prosecuted  by  one  delinquent  only,  not 

by  two  or  more  jointly.    Id.,  963 

7.  If  justice  return  such  certiorari  incorrectly,  it  will  not  be  reason  to 

quash  it.     Id.,  963 

See  MOTION  TO  QUASH,  1 ;  ORPHANS  COURT,  1,  2 ;  RULE,  2,  4,  5, 
6;  RECORD,  1,  2 ;  REVERSAL,  1. 

Challenge. 

To  juror  when  panel  is  called  is  sufficient,  must  be  tried,  and  need 

not  be  renewed.    Meeker  v.  Potter,  586 

See  NEW  TRIAL,  1,  2. 

Charge. 

See  JUSTICE,  1. 

Clerk. 

See  FEES,  1;  ATTACHMENT,  1. 

Collateral  Promise. 

See  EVIDENCE,  6. 

Commission. 

To  take  deposition  of  foreign  witness,  cannot  issue  without  affidavit 

and  motion  in  open  court.     Hendricks  v.  Oraig,  667 

Commissioners. 

To  divide  land.     State  v.  Judges  of  Burlington,  664 

See  ORPHANS  COURT. 

Common  Bail. 

See  APPEARANCE,  1. 

Common  Informer. 

1.  Action  by,  must  be  commenced  by  summons.     Oliver  v.  Larsaleer,    513 

2.  Title  of  statute  must  be  endorsed  on  writ.    Id.,  513 

Confession  of  Judgment. 

Affidavi'  is  required  only  in  cases  of  judgments  upon  bonds  and  obli- 
gations, not  on  warrants  of  attorney  without  bond.  Sharp  and 
Tultle  T.  Young,  845 

Consideration. 

Of  bond  and  mortgage  may  be  shown,  in  trial  of  ejectment,  to  have 
been  fraudulent,  and  the  price  of  compounding  felony.  Den  v. 
Moore,  470 

See  STATUTE  or  FRAUDS,  1,  2;  SEALED  BILL,  2;  EJECTMENT,  1. 


SOUTH.]  INDEX.  1027 


Constable. 

1.  Cannot  maintain  an  action  on  promise  that  prisoner  would  not 

escape  if  lie  was  not  carried  to  jail  for  one  day.  Winicrmvte  v. 
Swisher,  682 

2.  Cannot  have  suit  for  preventing  him  from  taking  defendant  on 

sundry  executions,  although  he  may  have  paid  the  plaintiffs' 
claims.  Lawrence  v.  Jones,  825 

3.  An  execution  which  ought  to  have  been  returned,  gives  no  right 

to  take  the  body.    Id.,  825 

4.  Two  cannot  have  joint  action  for  goods  on  which  both  levied,  by 

virtue  of  separate  executions  in  their  hands.  Warnt  v.  Ease  and 
Leonard,  809 

See  EVIDENCE,  3,  9;  COSTS,  1. 

Constable's  Bond. 

Suit  against  sureties  of  constable  must  be  brought  on  bond  in  the 

name  of  the  inhabitants  of  the  township.    Lewis  v.  Little,  685 

See  BAIL-BOND,  1,  2;  EXECUTION,  1. 

Construction. 

See  LEASE,  1,  2,  3. 

Contents. 

See  EVIDENCE,  4,  8. 

Contract. 

1.  Count  that  defendant,  in  consideration  of  $80  paid  to  him,  under- 

took to  dig  a  well  and  finish  it  with  good  materials  and  in  work- 
manlike manner,  and  breach  assigned,  is  supported  by  proof 
that  defendant  received  $80  for  digging  the  well ;  that  it  was 
neither  so  deep  as  other  wells  in  the  neighborhood,  nor  finished 
with  good  materials  and  in  a  sound  manner ;  that  it  failed  of 
water  in  a  year,  and  plaintiff  was  obliged  to  get  another  dug. 
Rose  v.  Parker,  780 

2.  He  who  undertakes  to  do  a  piece  of  work  for  a  sound  price,  paid 

in  lump,  undertakes  to  do  it  in  a  workmanlike  manner,  and  the 
law  raises  the  assumpsit  on  the  receipt  of  the  money.  Id.,  780 

See  ACTION,  1,  3. 

t 
Copy. 

See  EVIDENCE,  4,  8. 

Corporation. 
See  STATUTE. 


1028  INDEX.  [5  LAW 


Costs. 

1.  Constable  may  recover  from  plaintiff  in  attachment  the  costs  of 

executing  writ,  where  defendant  has  no  property  to  satisfy  them, 
but  not  costs  of  removing  goods,  nor  costs  occasioned  by  execut- 
ing the  writ  on  wrong  property.  Curtis  v.  Hulsizer,  4C6 

2.  In   action   upon  judgment,  costs  of  execution   may  be  added  to 

amount  of  the  judgment.     Miller  v.  Miller,  508 

3.  On  judgment  against  defendant  in  forcible  entry  &c.,  to  be  multi- 

plied by  three.     Muirs  v.  Sparks,  513 

4.  Two  defendants,  verdict  against  one,  and  no  certificate  of  judge, 

the  other  may  have  rule  for  costs.     Abrams  ads.  Flatt,  544 

5.  Rule  for  security  in  ejectment  may  be  granted  after  issue  where 

lessor  resides  out  of  the  state.     Den  v.  Wilson,  680 

6.  Costs  of  witnesses,  for  what  time  to  be  taxed.     Den  v.  Vancleve,        7191 

Court  for  Small  Causes. 

1.  Has  not  jurisdiction  of  an  action  of  case  by  owner  for  overflowing 

land  to  the  permanent  injury  of  the  freehold.     Vantyl  v.  Marsh,  504 

2.  Has  not  jurisdiction  of  covenant  for  breach  of  warranty  of  title 

in  deed.     Burrough  v.  Vanderveer,  809* 

See  JUDGMENT;  JUSTICE;  MALICIOUS  PROSECUTION,  1. 

Covenant. 

If  plaintiff  declare  on  two  deeds,  one  for  eight,  the  other  for  six  lots 
of  land,  with  covenant  to  pay  yearly  $72  on  the  lots  in  each  deed, 
and  assign  for  breach  the  non-payment  of  rent  on  particular  lots 
named,  count  is  good.  Jersey  Company  v.  Halsey,  750- 

See  COURT  FOR  SMALL  CAUSES,  2;  EVIDENCE,  2,  7. 

Criminal  Prosecution. 
See  BOND. 

D. 

Damages. 

See  NEW  TRIAL,  2,  4. 

Debt. 

See  ERROR,  1. 

Debtor,  Insolvent. 

See  BILL  OF  SALE,  4;  JUDGMENT,  5,  8. 

Deceit. 

Passing  note  to  A,  who  cannot  read,  and  assuring  him  that  B  is  security 
upon  it,  when  he  is  not  so,  will  sustain  an  action.  Decker  v. 
Hardin,  57  9 

Meeker  v.  Potter,  58ft 

See  SCIENTER,  1. 


-2  SOUTH.]  INDEX. 


Declaration. 

That  defendant  broke  plaintiff's  close  and  posted  on  his  door  a 
wicked,  malicious  and  insulting  hand-bill,  and  then  setting  out 
the  tenor  of  the  hand-bill  and  concluding  "  to  his  damage  "  Ac., 
is  good.  Gibbons  v.  Ogden,  853 

See  COVENANT,  1;  SEALED  BILL,  2;  AMENDMENT,  1,  2;  CON- 
TRACT, 2;  PROMISSORY  NOTE,  1,  2;  PLEADING,  5. 

Declarations. 

See  TESTAMENTARY  CAPACITY,  2. 

Delinquent. 

See  CERTIORARI,  5,  6,  7. 

Demand. 

See  PROMISSORY  NOTE. 

Demise. 

See  AMENDMENT,  2. 

Demurrer. 

To  indictment  is  seldom  made  and  never  required.  Motion  to  quash 
is  substituted  for  it  Nicholis  ads.  State,  539 

Depositary. 

See  BILL  OF  SALE,  4. 

Deposition. 

Sec  COMMISSION,  1. 

Descent. 

See  HEIRS. 

Devise. 

1.  "  I  give  unto  my  brother  G.  the  use  &o,  during  his  natural  life, 

and  no  longer ;  and  then  I  give  my  said  lands  Ac.  to  S.,  his  heirs 
and  assigns  forever ;  but  in  case  S.  die  before  he  arrives  to  lawful 
age  or  have  lawful  issue,  then  I  give  the  same  to  J.  and  H.,  to  be 
equally  divided,  or  the  survivor"  &c.  S.  takes  an  estate  in  fee, 
with  limitation  to  J.  and  H.  by  way  of  executory  devise,  not 
estate  tail,  with  remainder  over.  Den  v.  Taylor  and  Sheppard,  413 

2.  "  To  S.  to  hold  during  her  life,  and  after  her  death  to  the  heirs  of 

her  body,  if  any  such  her  surviving,  and,  for  want  of  such  heirs, 
to  W.  and  the  heirs  male  of  his  body,  if  any  such  him  surviv- 
ing." S.  takes  estate  tail  general,  W.  a  vested  remainder  in  tail 
male.  W.  takes  the  estate  after  death  of  R.,  a  daughter  of  S., 
who  survived  S.,  and  died  without  issue.  Den  v.  Huyg,  427 


1030  INDEX.  [5'LAW 


Devise — Continued. 

3.  If  W.  enter  into  possession,  and  his  son  die  before  him,  his  grand- 

son takes  the  estate  after  his  death.     Id.,  427" 

4.  In  1775  to  A  for  life,  then  to  B  and  his  heirs  male,  then  to  C  and     » 

her  heirs  male.  B  and  C  die  during  A's  life.  C's  son  D  entered 
in  1793  and  sold  to  E  in  fee.  E  holds  the  fee  against  the  heirs 
of  D  by  virtue  of  the  statute.  Pat.  54.  Den  v.  Robinson,  689* 

Discharge. 

See  INSOLVENT,  1. 

Discontinuance. 

Where  plaintiff  discontinued,  because  directed  to  do  so  by  award, 
and  award  is  afterwards  set  aside,  the  discontinuance  may  be     " 
withdrawn  and  action  continued.     Burrough  v.  Thome,  77T 

Division  Pence. 

See  TOWNSHIP  COMMITTEE. 

Division  of  Land. 
See  ORPHANS  COURT. 

Dower. 

1.  On  proper  application  by  tenant,  court  will  grant  rule  to  stay 

waste.     Harker  v.  Christy,  717 

2.  Widow  is  entitled  to  dower  in  lands  on  which  the  husband  had 

executed  a  mortgage  in  fee  before  the  marriage.  Montgomery  v. 
Bruere,  8(><> 

3.  He  who  comes  in  and  holds  under  husband  as  heir  or  alienee,  can- 

not question  his  title  in  order  to  defeat  the  dower.  1011 

4.  Tenant  cannot  set  up  latent  title,  unaccompanied  by  possession,  to 

defeat  widow's  claim.     Id.,  1011 

5.  Wife  is  entitled  to  dower  in  a  defeasible  estate  of  the  husband 

until  estate  be  defeated.     Id.,  1011 

Due  Diligence. 

See  PROMISSORY  NOTE,  1,  2. 

Duel. 

See  NEW  TRIAL,  2. 

E. 

Eijectment. 

Where  plaintiff  claims  title  under  mortgage,  defendant  may  show 
that  he  was  insane  at  the  time  of  its  execution,  and  that  it  and 
the  bond  were  fraudulently  obtained  and  given  to  suppress  a 
prosecution  for  forgery.  Den  v.  Moore,  470> 

See  NEW  TRIAL,  3;  COSTS,  5;  AMENDMENT. 


2  SOUTH.]  INDEX.  1031 


E  ndorse  me  nt . 

See  PROMISSORY  NOTE. 

Enlistment. 

See  GUARDIAN,  1 ;  SOLDIER,  1. 

Equity  of  Redemption. 
See  DOWER,  2,  3,  4,  5. 

Error. 

1.  Action,  case;  judgment,  debt,  not  error.     Meeker  v.  Potter,  586 

2.  Where  oue  bill  of  exception  shows  error  in  rejecting  witness,  and  a 

second  bill  shows  that  he  was  interested,  court  will  not  reverse. 
Ayers  and  Vundorn  v.  Vanlieu,  765 

3.  Reasons  not  filed  cannot  be  argued,  but  if  defect  apparent,  time 

given  to  file  reason.     State  v.  Kirby,  835 

See  ADJOURNMENT,  1 ;  PLEADINGS,  5. 

Escape. 

See  JUDGMENT,  5. 

Exceptions. 

See  BILL  OF  EXCEPTIONS. 

Execution. 

Judgment  and  execution  on  constable's  bond  and  execution  satisfied. 
Subsequent  executions  on  same  bond  will  not  be  preferred  to 
another  execution  received  by  the  sheriff"  before  them.  Execu- 
tions have  priority  according  to  delivery  to  sheriff.  Northampton 
v.  Woodward,  788 

See  EVIDENCE,  3,  9;  WRIT  OF  ERROR,  1;  SHERIFF;  JUDGMENT, 
5,  7 ;  ASSESSMENT  ;  CA.  SA.,  1,  2 ;  CONSTABLE,  2,  3 ;  BAIL- 
BOND,  2;  ACTION,  3. 

Executor. 
See  LEGACY. 

Executory  Devise. 
See  DEVISE,  1,  2,  3. 

Evidence. 

1.  Proof  of  the  handwriting  of  subscribing  witness,  who  is  dead,  u 

not  sufficient  to  send  to  the  jury  a  bill  having  an  ink-scroll  for  a 
seal,  and  which  does  not,  on  the  face  of  it,  say  that  it  was  sealed 
and  delivered.  Newbold  v.  Lamb,  449 

2.  In  trespass  by  lessee  against  lessor,  where  lease  is  "  for  a  house 

and  lot  of  land  containing  three  acres,  be  the  same  more  or  less," 


1032  INDEX.  [5  LAW 


Evidence — Continued. 

lessor  may,  by  parol,  explain  lease  and  show  what  is  held  under 

it.     Chamberlain  v.  Letson,  452 

3.  Where  constable  has  levied  on  goods,  and  brings  trover  for  them, 

defendant  may  show  that  the  judgment  on  which  execution  was 
issued  was  voluntary,  by  confession,  without  affidavit,  and  if  it  so 
appear,  plaintiff  shall  not  recover.  Cliver  v.  Applegate,  479 

4.  Original  paper  must  be  strictly  accounted  for,  and  copy  strictly 

proved,  before  it  can  be  read.     Wills  v.  M'Dole,  501 

5.  Written  evidence  need  not  appear  on  the  transcript.   Sutton  v.  Petty,  504 

6.  Promise  by  A  to  pay  if  B  fail,  evidence  of  judgment  against  B, 

and  execution  returned  that  B  denied  having  any  property  suffi- 
cient to  bind  A.  Id.,  504 

7.  Covenant  by  vendee  of  lands,  payment  to  be  in  lawful  currency  of 

New  Jersey,  he  may  prove  that  before  day  of  payment  defendant 
agreed  to  receive  bank  bills  in  payment,  but  refused  them  when 
tendered.  M'Eowen  v.  Rose,  582 

8.  Testator,  six  months  before  his  death,  had  paper ;  appraiser  could 

not  find  it  among  those  shown  by  executor,  who  had  the  key ; 
a  near  relation  of  testator,  who  often  transacted  business  for  him 
and  with  him,  knew  no  other  place  where  he  kept  papers,  but 
those  examined  by  appraiser;  proof  of  contents  not  admitted. 
Sterling  v.  Potts,  773 

9.  Trespass  for  taking  goods;  defendant  offered  in  evidence  execution 

delivered  to  him  as  constable ;  rejected,  because  judgment  not 
produced.  Hamilton  and  Eduatt  v.  Decker,  813 

10.  In  trover  against  insolvent  debtor,  transcript  of  action  between 
assignee  and  plaintiff  respecting  same  goods,  admissible.    Demund 

v.  French,  828 

11.  A  bought  lands  of  administrators  for  mill-seat ;  built  mill,  and 

overflowed  other  lands  of  intestate;  heirs  brought  suit;  the  deed 
from  administrators  not  competent  evidence.  Winans  v.  Brook- 
field,  847 
See  WARRANTY  ;  HUSBAND  AND  WIFE  ;  LEASE,  3 ;  EJECTMENT, 
1 ;  PLEADING,  1 ;  TRANSCRIPT,  1 ;  CA.  SA.,  1 ;  FEES  ;  TESTA- 
MENTARY CAPACITY,  2 ;  CONTRACT,  1,  2 ;  PROMISSORY  NOTE, 
3 ;  BOOKS  ;  TRESPASS  ;  CONSTABLE,  2,  3. 


Fee  Simple. 

See  DEVISE. 

Fee  Tail. 

See  DEVISE. 


2  SOUTH.]  INDEX.  1033 


Fees. 

Of  witnesses  and  jurors,  received  by  clerk,  may  be  recovered  by  action 
of  debt,  but  plaintift"  must  show  conviction  of  defendant,  and  that 
fees  were  received  by  clerk.  Smith  v.  Johnson,  511 

Felony,  Compounding  of. 
See  EJECTMENT. 

Fence. 

See  TOWNSHIP  COMMITTEE. 

Forgery. 

1.  Bill  of  exception  states  that  subscribing  witness  proved  note,  it  must 

mean  its  legal  execution,  and  though  alteration  appears  on  its 
face,  and  it  was  permitted  to  go  to  the  jury,  court  will  not  reverse. 
Sayre  v.  Brookfield,  737 

2.  Indictment  must  set  out  tenor  of  instrument  forged.     State  v. 

Gustin,  744 

See  INDICTMENT/ 

Former  Judgment. 
See  PLEADING,  3. 

Forcible  Entry  and  Detainer. 

1.  Possession  in  plaintiff  must  be  shown.     Mairs  v.  Sparks,  513 

2.  Plaintiff,  claiming  under  lease,  defendant  may  show,  by  parol,  that 

lease  was  surrendered.     Id.,  513 

3.  Certiorari,  to  remove  proceedings,  allowed  before  judgment.    Id.,    513 

4.  Costs  multiplied  by  three.     Id.,  513 

5.  Judgment  of  restitution  sufficient  after  verdict  of  guilty.    Id.,         513 

6.  Judgment  of  restitution  necessary  after  verdict  of  guilty.     Kerr  et 

al.  v.  Phillips,  818 

7.  Where  defendants  hold  in  severally,  joint  action  cannot  be  brought. 

Id.,  818 

8.  Must  set  out  truly  the  place  and  the  estate  of  complainants.    Bank* 

v.  Murray,  849 

See  SUMMONS,  2. 

Frauds. 

See  TESTAMENTARY  CAPACITY,  2 ;  STATUTE  OF  FRAUDS  ;  BILL  OF 
SALE. 

G. 

Guardian. 

Assent  of,  not  necessary  to  validity  of  enlistment,  if  master  assents. 

State  v.  Brearley,  555 

See  HABEAS  CORPUS,  1 ;  LEASE,  1 ;  INFANT,  1. 


1034  INDEX.  [5  LAW 


Guardianship. 

Letters  by  orphans  court  to  be  received  as  legal  and  proper,  until 

vacated  on  appeal.    State  v.  Cheeseman,  445 

Grand  Jury. 
See  SHERIFF,  1. 

H. 

Habeas  Corpus. 

1.  The  object  of  writ  ad  sub.  is  to  relieve  from  unlawful  imprison- 

ment, but  where  ward  under  fourteen  years  remains  with  mother 
of  its  own  choice  and  without  restraint,  court  will  not  order 
delivery  to  statutory  guardians,  although  entitled  to  custody  of 
person  and  estate.  State  v.  Cheeseman,  445 

2.  Service  must  be  proved  by  affidavit  before  attachment  is  issued. 

Slate  v.  Rahorg,  545 

3.  To  bring  up  soldier.     State  v.  Brearley,  555 

4.  Discharge  of  soldier  in  Pennsylvania  does  not  preclude  inquiry 

here.    1  d.,  555 

5.  Bail  cannot  be  waived  ;  but  if  not  filed,  cause  remanded.     Craig 

v.  Berry,  852 

See  JURISDICTION,  1 ;  ADMINISTRATOR,  1. 

Half-Blood. 

See  HEIRS. 

Hand-Bill. 

See  TRESPASS,  1. 

Handwriting. 

See  EVIDENCE,  1. 

Heirs. 

Brothers  and  sisters  of  the  half-blood,  by  the  mother's  side,  inherit 
with  half-sister  on  the  father's  side,  lands  acquired  by  deed  of 
gift  from  father.  Den  v.  Arnold,  862 

Husband  and  "Wife. 

1.  Where  husband  lives  with  wife  and  has  paid  bills  created  by  her, 

his  estate  is  liable  for  goods  suitable  to  his  condition  in  life, 
bought  by  her,  without  his  order,  and  received  in  his  house  after 
he  was  speechless,  and  a  few  hours  before  he  died,  and  partly 
used  before  his  death,  and  at  his  funeral,  although  she  had  sepa- 
rate property  and  sometimes  paid  bills  with  it.  Sterling  v.  Potts,  773 

2.  Testator's  situation  in  life  shown,  to  prove  that  the  goods  were 

suitable  for  him.     Id.,  773 


2  SOUTH.]  INDEX.  1035 

L 

Imprisonment. 

See  CA.  SA. 

Indictment. 

1.  Forgery   of  promissory  note,  signed  "Ogden   &  Gustin,"  dated 

before  dissolution  of  partnership,  purporting  to  be  signed  by  D. 
Gustin,  &c.,  is  good.     State  v.  Gustin,  74S> 

2.  For  perjury,  on  application  for  benefit  of  insolvent  laws,  not  neces- 

sary to  set  out   the  manner   in  which  common  pleas  obtained 
jurisdiction.    State  v.  Ludlow,  772 

3.  It  is  safest,  but  not  indispensable,  that  the  interrogatories  be  in 

writing.     Id.,  772 

See  FORGERY,  2 ;  RECORD,  1 ;  CERTIORARI,  4. 

Infant. 

If  infant  do  not  appear  upon  service  of  summons,  plaintiff  may  have 
rule  to  assign  guardian  and  enter  appearance,  first  serving  him, 
and  those  who  have  him  in  custody,  with  a  copy  of  the  rule. 
Judson  v.  Storer,  544 

Set  HABEAS  CORPUS,  1,  3,  4 ;  LEASE,  1. 

Inhabitants  of  Township. 
See  CONSTABLE'S  BOND. 

Injunction. 

See  JUDGMENT,  7. 

Insolvent. 

Law  repealed  without  saving  clause,  after  application  made,  the  dis- 
charge void.  State  v.  Shinn,  553 

See  WITNESS,  5;  SHERIFF,  2;  JUDGMENT,  5,  8;  BILL  OF  SALE; 
INDICTMENT,  2. 

Insolvent  Law. 

Of  New  York,   discharging  the  debt,  unconstitutional.     Olden  v. 

HaUett,  466 

Interest. 

Note  payable  at  given  day,  bears  interest  from  that  day,  and  if  sued 
for  before  a  justice,  interest  cannot  be  thrown  away  to  reduce 
amount  to  his  jurisdiction.  Vangeisen  v.  Vanhouten,  822 

Interrogatories. 
See  INDICTMFJJT,  3. 


1036  INDEX.  [5  LAW 

J. 
Joint  Defendants. 

See  COSTS,  4. 

Joint  Owner. 
See  TROVER,  2. 

Judgment. 

1.  Operates  extinguishment  of  bond  debt.     Olden  v.  Hallett,  466 

2.  In  one  state,  conclusive  in  another,  and  nil  debet,  bad  plea.     Id.,      466 
Lanning  v.  Shute,  778 

3.  By  confession,  without  affidavit,  fraudulent,     diver  v.  Applegate,      479 

4.  May  be  delayed  for  advisement,  but  notice  must  be  given,  that 

parties  may  be  present  when  it  is  rendered.     Clark  v.  Head,          486 

5.  Court  reverse  judgment  against  sheriff  for  escape,  where  it  appears 

the  execntion  was  issued  without  valid  judgment,  and  the  de- 
fendant had  insolvent  discharge,  but  had  no  opportunity  to 
plead  it.  Mitts  v.  Sleghl,  565 

6.  Against  two,  if  service  of  summons  on  one,  bad.    Oliver  and  Tillman 

v.  HoweU,  581 

7.  Judgment  and  execution  levied  in  1765;  proceedings  stayed  by 

injunction,  which  was  dissolved  in  1815,  and  scire  facias  for  exe- 
cution, the  law  presumes  the  claim  satisfied.  Buehannan  v.  Row- 
land, 721 

8.  Against  insolvent  debtor,  must  be  against  him  to  be  levied  of  his 

goods  &c.     Miller  v.  Tuttle,  810 

See  BOND  FOR  PRISON  LIMITS  ;  FORCIBLE  ENTRY  AND  DETAINER, 
5,  6 ;  APPEAL  ;  RECOGNIZANCE  ;  ERROR,  1 ;  ADMINISTRATOR, 
2 ;  SCIRE  FACIAS  ;  EVIDENCE,  6,  9,  10 ;  TRANSCRIPT,  2,  3 ; 
COURT  OF  APPEALS. 

Jurisdiction. 

Quere.  Have  state  courts  power  to  inquire  on  habeas  corpus  into  de- 
tention of  prisoner  claimed  as  enlisted  soldier  in  United  States 
army  ?  State  v.  Brearley,  555 

See  COURT  FOR  SMALL  CAUSES;  MALICIOUS  PROSECUTION;  BAS- 
TARD; INTEREST. 

Juror. 

1.  Interest  disqualifies.     Meeker  v.  Potter,  586 

2.  If  jurors  leave  room  against  will  of  constable,  their  verdict  bad. 

Shepperd  v.  Baylor,  827 

See  VERDICT;  FEES;  CHALLENGE. 

Jury. 

Misconduct,  cause  of  reversal  of  judgment.     Demund  v.  Oowen,  687 

See  PLEADING,  1. 


2  SOUTH.]  INDEX.  1037 

Justice. 

Bound  to  declare  the  law  to  jury,  when  demanded.    MUU  v.  SUght,    566 
See  TRANSCRIPT  ;  SCIRE  FACIAS. 

Justification. 
See  PLEA. 

Judgment. 

See  CONFESSION  OF  JUDGMENT. 

L. 

Lease. 

1.  By  statutory  guardian,  voidable,  but  consent  of  infant  confirms  it. 

Vandorn  v.  Everitt,  460 

2.  For  two  years,  tenant  has  a  right  to  two  crops,  and  may  enter  to 

reap,  after  expiration  of  lease.     Id.,  460 

3.  Construed  by  course  of  husbandry.     Id.,  460 
See  EVIDENCE,  2. 

Legacy. 

Pecuniary  legacies  abate  proportionably  ;  and  if  executor  voluntarily 
pay  legacy  without  taking  a  refunding-bond,  and  the  estate  be 
insolvent,  legatee  must  refund  ;  and  if  he  sue  for  debt,  executor 
may  set  off  what  he  paid  beyond  ratable  proportion  of  legacy. 
Harris  v.  White,  422 

Letters  of  Guardianship. 
See  GUARDIANSHIP. 

Levy. 

Quere.  Whether  legal  where  officer  does  not  see  the  goods.     Oliver 

v.  Appleyatc,  479 

Lien. 

See  STATUTE. 

Libel. 

See  DECLARATION. 

Limitation  of  Actions. 

One  item  of  account  will  not  take  case  out  of  statute.    Millar  v.  CW- 

wU,  577 

See  JUDGMENT,  7. 

M. 

Malicious  Prosecution. 

Court  for  small  causes  has  jurisdiction,  and  if  there  be  regular  plead- 
ings and  witnesses  sworn,  judgment  not  reversed.  Matthcux  v. 
Ferguson, 


1038  INDEX.  [5  LAW 


Marriage. 

See  SEALED  BILL,  2. 

Master. 

See  SOLDIER;  GUARDIAN. 

Miller. 

See  VERDICT,  3. 

Motion. 

See  PLEADING,  2,  6. 

Motion  to  Quash. 

It  is  not  necessary  to  file  reasons  on  this  motion.    State  v.  Kirby,          835 
See  ATTACHMENT,  1 ;  PLEADING,  2 ;  CERTIORARI,  5,  6,  7. 

Mortgage. 

See  EJECTMENT. 

N. 

New  Jersey  Currency. 
See  EVIDENCE,  7. 

New  Trial. 

1.  Not  granted,  because  judge  refused,  under  circumstances,  to  post- 

pone trial.     Ogden  v.  Gibbons,  518 

2.  Not  granted,  where  $5,000  were  given  for  posting  hand-bill  on 

plaintiff's  door.     Jd.t  518 

3.  Granted,  in  ejectment,  after  trial  at  bar  by  special  jury  and  ver- 

dict for  defendant.     Den  v.  Vancleve,  589 

4.  Not  granted,  for  excessive  damages  in  case  for  overflowing  lands, 

where  some  witnesses  swear  to  higher  damages  than  are  given. 
Winans  v.  Brookjield,  847 

See  VERDICT,  1,2,  4. 

Nil  Debet. 

See  NOTICE,  1 ;  JUDGMENT,  2. 

Nonsuit. 

1.  Defect  of  pleading  which  verdict  cures   not  ground  of  nonsuit. 

Jersey  Company  v.  Halsey,  750 

2.  Refusal  to  nonsuit  assigned  for  error.     Parker  v.  Rose,  780 

3.  If  court  direct  plaintiff  to  be  called  and  he  answers  and  obtains 

verdict,  court  will  set  aside  verdict  and  amend  postea  so  as  to 
return  the  nonsuit,  even  though  defendant  proceeded  to  try  the 
cause.  Den  v.  Franklin  and  Sharp,  851 

See  RECOGNIZANCE  ;  TRANSCRIPT,  3 ;  WARRANTY. 


2  SOUTH.]  INDEX  1039 

Notice. 

1.  Court  will  not,  on  motion,  strike  out  notice  joined  to  plea  of  nil 

debet  where  there  is  demurrer  to  the  plea.     Lanning  v.  Shute,        553 

2.  Of  set-off. 

See  PROMISSORY  NOTE,  1. 

o. 

Oath. 

See  ROAD,  4. 

Original  Papers. 

Ought  not  to  be  sent  up  with  return  of  certiorari.    Miller  v.  Carhart,    720 

Orphans  Court. 

1.  Certiorari  allowed  to  bring  up  division  of  land  after  three  months 

from  its  confirmation.     Stale  v.  Judges  &c.,  554 

2.  Division  confirmed  by  orphans  court  set  aside  because  some  of 

the  lands  were  divided  which  did  not  belong  to  intestate.    Id.,      554 

Overflowing  Land. 

See  COURT  FOR  SMALL  CAUSES,  1 ;  NEW  TRIAL,  4 ;  EVIDENCE,  11. 

Overseers  of  Highways. 

Liable  in  trespass  for  going  on  lands  for  any  purpose  except  those 
stated  in  statute.     Ward  v.  Folly,  435 

Oxen. 

See  TRESPASS,  2. 

Over  and  Terminer. 

See  CERTIORARI,  4 ;  RECORD,  1. 

P. 
Pauper. 

See  BASTARD;  SESSIONS. 

Payment. 

After  twenty  years,  presumption  conclusive.    Huchannan  v.  Rowland,  721 
See  PROMISSORY  NOTE. 

Penalty. 

See  BASTARD. 

Perjury. 

See  INDICTMENT,  2. 


1040  INDEX.  [5  LAW 


Pleading. 

1.  Account  not  pleaded  on  return-day  of  summons  not  to  be  laid  be- 

fore jury.     Clark  v.  Read,  486 

2.  Motion  to  quash  not  made  while  plea  of  not  guilty  is  on  record, 

but  it  may  be  withdrawn  to  move  to  quash.     Nicholls  ads.  State,  539 

3.  Suit  on  book  debt ;  afterwards  suit  on  sealed  bill  which  plaintiff 

held   when   first  suit  was   brought,  defendant   may   plead   the 
former  judgment.     Carhart  v.  Miller,  573 

4.  Plea  of  title  to  land  in  trover.     Vanness  v.  Nafie,  683 

5.  Errors  in  declaration,  warrant  of  attorney,  venue  <&c.,  cured  by 

plea  relinquished  and  judgment  confessed.      Wilson  v.  Wilson,      791 

6.  After  cause  brought  up  by  habeas  corpus  has  been  noticed  and 

carried  to  circuit,  but  not  tried,  plea  of  justification  in  slander 
may  be  withdrawn  on  motion,  and  issue  left  on  not  guilty.     Whit- 
lock  v.  Vanpelt,  ,    810 
See  PROMISSORY  NOTE,  1,  2.  3;   NONSUIT,  1;  SEALED  BILL,  2; 
AMENDMENT. 

Possession. 

See  TRESPASS  ;  FORCIBLE  ENTRY,  1,  7. 

Postponement. 
See  TRIAL. 

Postea. 

See  NONSUIT,  3. 

Practice. 

It  is  not  proper  to  bring  up  judgments  by  consent.     Northampton  v. 

Woodward,  788 

Prisoner. 

If  indictment  quashed  because  sheriff  had  not  jury  process,  prisoner 

must  find  bail  to  appear  &c.     Nicholls  ads.  State,  \  539 

Privilege. 

See  ATTORNEY,  1. 

Process. 

See  Qui  TAM,  1 ;  SHERIFF,  1 ;  INFANT,  1. 

Promise. 

See  STATUTE  OF  FRAUDS. 

Promissory  Note. 

1.  Declaration  by  endorsee  against  endorser,  on  note  payable  without 
defalcation  or  discount;  plea,  payment  after  it  was  due,  and 
notice  of  set-off;  plea  and  notice  not  good,  and  struck  out  on 
motion.  Cory  ell  v.  Croxall,  764 


2  SOUTH.]  INDEX.  1041 


Promissory  Note — Continued. 

2.  Count,  on  note  by  A  to  B,  on  6th  of  December,  payable  in  ten 

days,  assigned  at  date  to  C,  presented  for  payment  after  the  ten 
days,  viz.,  1st  of  January,  will  not  support  recovery  by  C 
against  B.  Estell  v.  Vanderveer,  782 

3.  In  such  case,  plaintiff  may  not  prove  that  note  was  assigned  after 

it  was  due.  Quere.  If  insolvency  of  drawer  makes  any  differ- 
ence ;  or  that  note  was  dishonored  in  endorsee's  hands.  Id.,  782 

4.  Blank  endorsement  is  authority  to  fill  up  assignment  only  in  the 

usual  form.     Clawson  v.  Gustin,  821 

See  FOKGERY. 

Proof  of  Note. 
See  FORGERY,  1. 

Purport. 

See  INDICTMENT,  1. 

Q. 

Qui  Tarn. 

1.  Name  of  prosecutor  and  title  of  statute  must  be  endorsed  on  pro- 

cess, under  timber  act.    Miller  v.  Stoy,  476 

2.  The  state  of  demand  must  show  in  what  right  plaintiff'  sues ;  where 

the  tree  was  cut;  that  defendant  had  no  right ;  and  the  title  of 
the  statute  authorizing  the  suit.  /</.,  476 

See  VERDICT,  3. 

R. 

Reasons. 

See  ERROR,  3 ;  MOTION  TO  QUASH. 

Receipc. 

See  CONSTABLE,  2. 

Record. 

1.  Form,  on  indictment  from  oyer  and  terminer.     State  v.  Gustin,         746 

2.  In   account,  may   contain,  or  refer   to,  the   account.     Wilton  v. 

Wilson,  791 

See  CERTIORARI,  2,  3,  4. 

Recognizance. 

If  plaintiff  suffer  nonsuit,  he  may  not  sue  on  recognizance.     Oliver 

and  Tillman  v.  Jfmrell,  581 

Reference. 
See  REPORT. 

66 


1012  INDEX.  [5  LAW 


Referees. 

See  REPORT. 

Befunding-Bond. 
See  LEGACY. 

Bent. 

See  COVENANT  ;  STATE  OF  DEMAND,  4. 

Beport. 

Reference  to  three,  report  by  two.     Hoff  v.  Taylor,  829 

Be  turn. 

See   CERTIORARI,   3,   4 ;    HABEAS    CORPUS  ;    ORIGINAL    PAPERS  ; 
ROAD,  4. 

Bestitution. 

See  FORCIBLE  ENTRY,  5,  6. 

Be-restitution. 

See  WRIT  OP  RE-RESTITUTION,  1. 

Beversal.  -.v' 

No  reversal  for  fact,  about  which  contradictory  evidence.    Angus  v. 

Radin,  815 

Boad. 

1.  Used  for  forty  years,  to  be  considered  as  regularly  laid,  though  no 

record  be  found.     Ward  v.  Folly,  482 

2.  Overseer  may  repair  it,  though  not  assigned  in  writing.     Id,,  482 

3.  Non-resident  owners  pay  tax  for  them.     Vandien  v.  Hopper,  -764 

4.  Rule  to  set  aside  return,  where  surveyors  not  sworn.     State  v. 

Lawrence,  850 

State  v.  Potts  et  al,  862 

Bule. 

1.  To  stay  waste,  without  plaintiff  setting  out  his  title ;  but  not  to 

prevent  use  of  timber  for  ordinary  purposes  of  the  estate.     Den 

v.  Kinney,  555 

2.  To  certify  or  amend  must  be  taken  by  defendant  at  the  term  to 

which   the  writ   is   returnable,  or   return   perfected.     .Sayre  v. 
Blanchard,  551 

3.  To  plead,  must  be  served.     Hunter  v.  Sudd  and  Jones,    .  •    718 

4.  So  on  justice,  to  amend,  and  diligence  used  by  party  to  procure 

return.    Dean  v.  Wade,  719 

5.  Must  be  taken  by  the  party  wishing  the  return  to  be  made     Thorp 

v.Ross,  '  720 


2  SOUTH.]  INDEX.  1043 


Rule— Continued. 

6.  Necessary,  before  original  papers  be  taken  from  files.     Miller  v. 

Oarharl,  720 

See  WRIT  OF  ERROR;  DOWER,  1. 


s. 

Sanity. 

See  EJECTMENT,  1. 

Satisfaction. 

See  CA.  SA.,  1,  2. 

Scienter. 

Must  be  proved  in  action  for  deceit  in  sale  of  horse.    Searing  v.  Liim,  683 
See  TRESPASS,  2 ;  WARRANTY. 

Scire  Facias. 

1.  To  revive  actions  against  administrators.     Montfort  v.  Vanarsdale,  686 

2.  Not  lawful  where  office  of  justice  giving  the  judgment  has  ex- 

pired.    Swisher  v.  Hibler,  808 

See  JUDGMENT,  7. 

Seal. 

Oydcn  v.  Gi66oni,  518 

See  EVIDENCE,  1. 

Sealed  Bill. 

1.  "To  A  or  heirs  "  assignable,  and  suit  must  be  in  name  of  assignee. 

Cbrhart  v.  Miller,  573 

2.  "To  pay  provided  obligee  is  not  lawfully  married  in  six  months," 

void.    Sterling  v.  Sinnickton,  756 

See  SECURITY;  PLEADING,  3;  EVIDENCE,  1. 

Security. 

Bound  to  pay  though  he  give  notice  to  creditor  to  sue,  who  brings  suit, 
discontinues  and  gives  further  time  to  principal,  and  he  fail-. 
Manning  v.  Shotwell,  ">M 

Service. 

See  JUDGMENT,  6. 

Sessions. 

Directed  to  send  up  state  of  case.     Mendhnm  v.  J/b/rin,  810 

Set-off. 

See  LEGACY. 


1044  INDEX.  [5  LAW 


Sheriff. 

1.  Cannot  summon  grand  jury  without  process.     Nicholls  ads.  State,     539 

2.  Not  to  let  prisoner  go  because  he  has  insolvent  discharge  of  older 

date  than  the  judgment.     Mills  v.  Sleghl,  565 

See  STATUTE  ;  CA.  SA.,  1,  2. 

Slander. 

See  PLEADING,  6. 

Soldier. 

Apprentice  not  discharged  if  master  assented  after  enlistment.     State 

v.  Brearley,  555 

See  GUARDIAN. 

Special  Contract. 
See  ERROR. 

State. 

Never  becomes  defendant  in  criminal  prosecution.     State  v.  Kirby,       835 

Statute. 

1.  The  order  for  appearance  of  defendant,  nnder  the  act  for  relief  of 
creditors  against  corporations,  remains  lien  until  plaintiff  is 
satisfied  and  is  preferred  to  subsequent  judgments.  Lawrence  v. 
Pat.  Cl.  Man.  Co.,  433 

But  see  contra,  Appendix,  861 

See  COMMON  INFORMER,  2 ;  TOWNSHIP  COMMITTEE,  1  ;  INSOL- 
VENT. 

Statute  of  Frauds. 

1.  Promise  that  A  shall  deliver  goods  to  constable.     Nixon  v.  Van- 

hise,  491 

2.  "  I  promise  to  pay  the  amount  of  said  execution  in  six  months  if 

defendant  do  not,"  binding.     Buckley  v.  Beardslee,  570 

3.  Facts  to  show  promise  good  in  law  must  be  shown.     Ashcroft  v. 

Clark,  577 

Scudderv.  Wade,  681 

State  of  Case. 
See  SESSIONS. 

State  of  Demand. 

1.  Insufficient.     Lacy  and  Earle  v.  Collins,  489 

2.  Must  be  filed  before  the  cause  is  adjourned.     Hunt  v.  South,  495 

3.  That  defendant  recommended  notes  to  be  good  and  of  full  value, 

when  he  knew  they  were  not,  is  not  good.     Meeker  v.  Potter,          586 


2  SOUTH.]  INDEX.  1045 


State  of  Demand— Continued. 

4.  That  defendant  rented  &c.     Hunfv.  Young,  813 

See  Qui  TAM,  2;  TROVER,  1. 

Style  of  Action. 

1.  On  agreement  to  pay  money,  bad.     Aahcroft  v.  Clark,  577 

2.  A  may  sue  in  B's  name  on  account  assigned  by  B  to  A.     Non-it  v. 

Douglas,  817 

Subpoena. 

See  WITNESS,  1. 

Summons. 

1.  Appearance  of  attorney  cures  defect  of  service.     Ayers  v.  Swayze,  812 

2.  Served  by  leaving  copy  fastened  to  door  &c.,  not  sufficient.     Miller 

v.  DoolitUe,  845 

See  Qui  TAM,  1 ;  COMMON  INFORMER,  1 ;  JUDGMENT,  6. 

Supersedeas. 

See  CERTIORARI,  1 ;   WRIT  OF  ERROR. 

Sureties. 

See  CONSTABLE'S  BOND,  1. 

Surveyors. 
See  ROAD,  4. 

T. 

Tax. 

See  ROAD,  3. 

Tax-Warrant. 

Against  delinquents  in  military  service  brought  up  by  cerliorari.    Stale 

v.  Kirby,  835 

See  CERTIOHARI,  5,  6,  7. 

Tenor. 

See  FORGERY,  2. 

Testamentary  Capacity. 

1.  What.     Den  v.  Vanclm,  589 

2.  Where  capacity  is  denied  and  fraud  charged,  proof  of  testator's 

declarations  incompetent.     Id.,  589 

See  WILL,  1. 

Timber  Act. 

See  Qm  TAM,  1,  2. 


1046  INDEX.  [5  LAW 


Titles  to  Lands. 
See  PLEADING,  4. 

Title  of  Oertiorari. 
See  CERTIOKARI,  4,  5. 

Township  Committee. 

Under  statute  (Pat.  336),  may  not  change  position  of  division  fence. 

Miller  v.  Barnet,  547 

Township. 

See  BASTARD. 

Transcript. 

1.  Justice's  signature  need  not  be  proved  by  parol.     Miller  v.  Miller,  508 
Ogden  v.  Gibbons,  518 

2.  Not  to  be  altered  after  judgment  recorded.     Searing  v.  Lum,  683 

3.  Defendant  called,  but  appearance  not  noted,  not  error.     Hunt  v. 

Young,  813 

See  EVIDENCE,  5,  9,  10. 

Trial. 

1.  Not  postponed,  because  plaintiff's  attorney  furnished  defendant's 

attorney  with  a  copy  of  declaration  variant  from  the  record  in 
this,  that  Th.  was  signed  to  hand-bill  instead  of  Thomas.  Ogden 
v.  Gibbons,  518 

2.  Postponement  matter  of  discretion,  but  if  injustice  be  done,  new 

trial  granted.     Id.,  518 

Trespass. 

1.  If  defendant  fasten  hand-bill  to  plaintiff's  door,  contents  of  bill 

may  be  set  out  in  declaration  and  considered  by  jury.  Ogden  v. 
Gibbons,  518 

2.  A's  oxen  broke  close  and  killed  B's  cow ;  B  need  not  prove  that 

A  knew  they  were  accustomed  to  gore.    Angus  v.  Radin,  815 

See  EVIDENCE,  2,  9 ;  DECLARATION,  1 ;  NEW  TRIAL. 

Trover. 

1.  Description  of  goods  not  particular.     Vanauken  v.  Wickham,  509 

2.  Joint   owner    entitled    to   exclusive    possession    may   sue    alone. 

Thompson  v.  Cook,  580 

See  EVIDENCE,  3 ;  PLEADING,  4 ;  CONSTABLE. 

u. 

Unde  Actio  Accrevit. 
See  SEALED  BILL,  2. 


2  SOUTH.]  1 XDEX.  1047 

V. 

Variance. 

.S'e«  TRIAL,  1. 

Venire. 

Must  not  issue  till  defendant  appears ;  but  if  it  be  issued,  and  defend- 
ant does  not  appear,  justice  may  dismiss  jury  and  try  cause. 
Wills  v.  M 'Dole,  501 

Venue. 

Not  changed  on  affidavit  that  cause  of  action  arose  in  another  county. 

Hall  v.  Cumberland  Bank,  718 

Verdict. 

1.  Clearly  against  evidence  and  charge  set  aside.     Chamberlain  \. 

Letson,  452 

2.  Not  set  aside,  if  evidence  contradictory,  and  judge  satisfied.     Den 

v.  Johnson,  450 

Dm  v.  Moore,  470 

3.  Must  show  for  what  offence  it  is  given,  under  statute,  to  ascertain 

toll  of  millers.     Weslbrook  v.  Vanauken,  478 

4.  Not  set  aside  on  oath  of  juror,  that  he  did  not  assent.     Clark  v. 

Read,  486 

See  NEW  TRIAL,  2,  3,  4. 

W. 
Warrant  of  Attorney. 

See  ATTORNEY,  2;  CONFESSION  OF  JUDGMENT,  1. 

Warranty. 

No  evidence  being  given  of  warranty,  nonsuit  should  be  granted. 

Mead  v.  Crane,  852 

Waste. 

See  RULE,  1 ;  DOWER,  1. 

Will. 

1.  Capacity,  necessary  to  make  will.     Den  v.  Johnton,  454 

2.  What  legal.     Den  v.  Vancleve,  689 
See  TESTAMENTARY  CAPACITY  ;  DEVISE. 

Witness.  * 

1.  Not  bound  to  attend,  unless  fee  given  when  subpoena  is  served. 

Ogden  v.  Gibbons,  518 

2.  Excluded  by  interest.     Meeker  v.  Potter,  BM 

3.  Over  fourteen,  not  interrogated  respecting  capacity,  unless  some 

reason  creating  suspicion  be  shown.     Den  v.  Vancleve,  689 


1048  INDEX.  [5  LAW 

Witness — Continued. 

4.  Maker  of  bill  of  sale  competent  to  prove  sale,  if  released.     Hen- 

dricks  v.  Mount  and  Crane,  738 

5.  Competency  of  agent  who  gave  note  and  is  insolvent.    Ayers  v. 

Vanlieu,  765 

6.  Of  executor  who  conveyed  land  without  warranty.     Surrough  v. 

Thome,  777 

7.  Constable  who  took  bail-bond  competent  to  prove  it.     Smalley  and 

Corriell  v.  Vanorden,  811 

See  EVIDENCE  ;  CA.  SA.  ;  FEES. 

Writ  of  Error. 

If  execution  issued  before  writ  served,  supersedeas  or  rule  on  sheriff 

will  be  given.     Sayre  v.  Reynolds,  564 

See  PKACTICE. 

"Writ  of  Re-restitution. 

Granted  without  affidavit,  if  transcript  shows  that  writ  of  restitution 

was  issued.    Kerr  v.  Phillips,  818 


A     001  167  268     o 


